Goodwin v. State

91 S.W.3d 912, 2002 Tex. App. LEXIS 8455, 2002 WL 31664487
CourtCourt of Appeals of Texas
DecidedNovember 27, 2002
Docket2-01-381-CR
StatusPublished
Cited by50 cases

This text of 91 S.W.3d 912 (Goodwin v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goodwin v. State, 91 S.W.3d 912, 2002 Tex. App. LEXIS 8455, 2002 WL 31664487 (Tex. Ct. App. 2002).

Opinions

OPINION

SAM J. DAY, Justice.

I. Introduction

Appellant Dennis Clark Goodwin was arrested for assaulting a family member. Appellant was charged with enhanced family violence assault because of a prior conviction for assault on a member of his household. He was tried to a jury which found him guilty. The jury sentenced him to nine years in jail and a $5,000 fine. Appellant appeals the conviction with three points: 1) the trial court committed error by denying a motion for mistrial based on improper jury argument; 2) the trial court committed error by improperly denying Appellant the opportunity to impeach the complainant with her mental health problems; and 3) the evidence is insufficient to establish that Appellant had been previously convicted of an assault involving a family member pursuant to Texas Penal Code section 22.01(b)(2). We affirm.

II. Facts

On January 31, 2000, police officers responded to a 911 hang-up call at Appellant’s residence. Upon arriving at the scene, the officers heard a female voice inside the trailer ask, “Why did you hit me?” Because of the phone call to 911 and the overheard conversation, the officers entered the residence.

When the officers entered the trailer, they encountered Appellant and his longtime girlfriend, Lauri Jacobs. Jacobs informed the officers that Appellant had [915]*915held a knife on her and when she had attempted to call 911, Appellant had cut the phone cord. She further alleged that Appellant had attacked her and hit her with his fist and an aerosol can. The officers felt raised bumps on the top of Jacobs head that led them to believe that she had in fact been assaulted. The officers then arrested Appellant for domestic assault and inspected the trailer. During their inspection of the trailer, the police found drugs and drug paraphernalia. Appellant was charged with possession of methamphetamine and enhanced family violence assault. After Appellant was convicted on both charges, he filed a motion for new trial. The trial court granted Appellant’s motion for new trial on the conviction for possession and only the conviction for family violence assault was appealed.

III. IMPROPER Jury Argument

Appellant’s first point contends that the trial court committed error by denying a motion for mistrial based on improper jury argument. Appellant claims that the State repeatedly referred to Appellant’s right to remain silent. Appellant asserts that these references to his right tarnished the trial in a way that was uncorrectable even by an instruction from the judge to disregard.

To determine if a prosecutor’s comment violated article 38.08 and constituted an impermissible reference to an accused’s failure to testify, we must consider whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily consider it to be a comment on the failure of the accused to testify. Tex.Code CRiM. Proc. Ann. art. 38.08 (Vernon Supp.2003); see Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App.2001); Fuentes v. State, 991 S.W.2d 267, 275 (Tex.Crim.App.), cert. denied, 528 U.S. 1026, 120 S.Ct. 541, 145 L.Ed.2d 420 (1999). The offending language must be viewed from the standpoint of the jury and the implication that the comment referred to the accused’s failure to testify must be clear. Bustamante, 48 S.W.3d at 765; Swallow v. State, 829 S.W.2d 223, 225 (Tex.Crim.App. 1992). It is not sufficient that the language might be construed as an implied or indirect allusion to the accused’s right to remain silent. Patrick v. State, 906 S.W.2d 481, 490-91 (Tex.Crim.App.1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996).

Appellant alleges that the State referred to Appellant’s right to remain silent on three different occasions during closing argument. On the first occasion, the prosecutor stated “if it was alleged to have been an accident, that could have been included in your charge, but it wasn’t. Okay. It also wasn’t done in self-defense. If it had been alleged to be in self-defense, that would have been — ” At this point Appellant objected that the State was commenting on Appellant’s choice not to testify. The trial court overruled Appellant’s objection.

Appellant alleges that the reference to self-defense was a comment on his right not to testify because only he could provide the necessary testimony to support a self-defense claim. He claims that the trial court erred in overruling his objection to improper jury argument.

A self-defense claim does not rely solely on the testimony of the defendant. See Smith v. State, 676 S.W.2d 584, 586-87 (Tex.Crim.App.1984) (holding that even the State can put on evidence that would support a charge relating to self-defense). Because evidence of self-defense did not have to come directly from Appellant’s testimony, there was no reference to Appellant’s choice not to testify. The trial court [916]*916did not commit error in overruling the objection.

The State then shifted its closing argument and focused on the defenses Appellant raised in the trial. Appellant’s main defense was that Jacobs had lied to the police when she claimed that Appellant had hit her. In order to prove that Jacobs was lying about the incident, Appellant focused on whether the phone line in the apartment was ever actually cut. The State was attempting to show how the facts of the case negated Appellant’s defense when the second comment at issue occurred. The State stated, “And don’t you think if there was any evidence that showed you that that [sic] phone cord wasn’t cut, you would have seen it? You know, who had access to the house? The police are in there.... But who had access to the house after that? The Defendant and the defense counsel.” At this point, Appellant objected and after the objection was sustained he asked the trial court to instruct the jury to disregard the comment. The trial court gave the jury an instruction to disregard the argument, and Appellant asked for a mistrial. The trial court denied the motion for mistrial. Appellant claims that the trial court erred in denying a mistrial because the comment could not be cured by an instruction to the jury to disregard.

If the State’s remark called to the jury’s attention the absence of evidence that could only be supplied by the testimony of the accused, the comment is improper; however, if the language can reasonably be construed to refer to appellant’s failure to present evidence other than his own testimony, the comment is not improper. Wolfe v. State, 917 S.W.2d 270, 279 (Tex.Crim.App.1996); Madden v. State, 799 S.W.2d 683, 700 (Tex.Crim.App.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1432, 113 L.Ed.2d 483 (1991).

Appellant and Jacobs were the only two witnesses to the assault. Appellant was the only person who could testify against what Jacobs claimed occurred in the trailer. Appellant also would be the only person able to authenticate evidence of an uncut phone line.

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Bluebook (online)
91 S.W.3d 912, 2002 Tex. App. LEXIS 8455, 2002 WL 31664487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goodwin-v-state-texapp-2002.