NUMBER 13-11-00461-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOHN PERRY JOSEPH, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 19th District Court of McLennan County, Texas.
MEMORANDUM OPINION1 Before Justices Garza, Benavides, and Perkes Memorandum Opinion by Justice Perkes Appellant, John Perry Joseph, appeals his conviction for bail jumping and failure to
appear (habitual), enhanced by two prior felony convictions, a third-degree felony.2 See
1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). TEX. PENAL CODE ANN. §§ 38.10(a), (f); 12.42 (d) (West 2011). The jury found appellant
guilty and assessed punishment at thirty-two years’ confinement in the Texas Department
of Criminal Justice, Institutional Division. By six issues, appellant argues that the trial
court erred by: (1) failing to sua sponte conduct a competency inquiry; (2) overruling
appellant’s objection to not receiving reasonable notice of the State’s intent to introduce
extraneous-offense evidence; (3) granting the State’s motion in limine; (4) improperly
commenting on appellant’s defenses in the jury charge; (5) sustaining the State’s
objection to defense counsel’s jury argument; and (6) overruling appellant’s objection to
the discussion of parole law during jury argument at the punishment phase. We affirm. 3
I. COMPETENCY INQUIRY
By his first issue, appellant contends the trial court erred by failing to sua sponte
conduct an informal competency inquiry. Appellant emphasizes, “The record is clear
that appellant was not able to communicate and cooperate with his attorney, engaged in
delusional speculation about the offense, and disregarded his attorney’s advice . . . and
[that he] had been diagnosed with Post-Traumatic Stress Disorder during his Army
service in Vietnam.”
A. Standard of Review
A defendant is presumed competent to stand trial and shall be found competent to
stand trial unless proven incompetent by a preponderance of the evidence. T EX. CODE 2 While appellant was on bond for the offense of possession of heroin, he failed to appear at trial. Although appellant and his wife came to the courthouse on the day of trial, appellant fled after his wife was arrested. Appellant does not challenge the sufficiency of the evidence to support his convictions. 3 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
2 CRIM. PROC. ANN. art. 46B.003(b) (West 2006); Salahud-din v. State, 206 S.W.3d 203,
207 (Tex. App.—Corpus Christi 2006, pet. ref’d). A defendant is incompetent to stand
trial if he does not have (1) sufficient present ability to consult with his attorney with a
reasonable degree of rational understanding; or (2) rational understanding as well as
factual understanding of the proceedings against him. TEX. CODE CRIM. PROC. ANN. art.
46B.003(a) (West 2006).
If evidence is brought to the trial court’s attention that raises a bona fide doubt
about the defendant’s competency, the court must conduct an informal inquiry outside the
jury’s presence to determine if there is evidence that would support a finding of
incompetence. TEX. CODE CRIM. PROC. ANN. art. 46B.004 (West Supp. 2011);4 Montoya
v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009). “Evidence capable of creating a
bona fide doubt about an accused’s competency may come from the trial court’s own
observations, known facts, evidence presented, motions, affidavits, or any other
reasonable or credible source.” Hobbs v. State, 359 S.W.3d 919, 924 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) (citing Brown v. State, 129 S.W.3d 762, 765
(Tex. App.—Houston [1st Dist.] 2004, no pet.)). “A bona fide doubt may exist if the
4 Article 46B.004 was amended effective September 1, 2011 to add section (c-1), which provides in relevant part that “the court is not required to have a bona fide doubt about the competency of the defendant.” See Act of May 19, 2011, 82nd Leg. R.S. ch. 822, §§ 21(a), 22, 2011 Tex. Gen. Laws 822 (codified at TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West Supp. 2011) (“Except as provided in subsection (b) of this section, the change in law made by this Act applies only to a defendant with respect to whom any proceeding under Chapter 46B, Code of Criminal Procedure, is conducted on or after the effective date [Sept. 1, 2011] of this Act.”). We do not determine the effect of this subsection to the case at hand because the subsection was not in effect at the time of appellant’s hearing. 3 defendant exhibits truly bizarre behavior or has a recent history of severe mental illness or
at least moderate retardation.” Montoya, 291 S.W.3d at 425.5
We review a trial court’s decision to not conduct an informal competency hearing
for an abuse of discretion. See id. at 426; Moore v. State, 999 S.W.2d 385, 393 (Tex.
Crim. App. 1999). A trial court abuses its discretion if its decision is arbitrary or
unreasonable. Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.—Fort Worth 2005,
pet. ref’d) (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)). We give great
deference to the trial court’s first-hand factual assessment of appellant’s mental
competency. McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003) (citing
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); see also Montoya, 291
S.W.3d at 426 (“those who observed the behavior of the defendant at the hearing were in
a better position to determine whether [he] was presently competent.”).
B. Background Facts
During pretrial, the trial court judge asked appellant if he understood the charges
against him, and appellant responded, “No, I don’t understand. I understand, your
Honor, for the Bail Jumping, but the Enhancement, it was on another case and things, you
know, and my lawyer informed me that it was dispensed of and everything.” The trial
court provided appellant a recess to consult with his attorney, after which the following
exchange transpired:
5 The Legislature’s amendment to article 46B.004, see supra note 4, effectively supersedes Montoya v. State and makes a “suggestion of incompetency”—not a trial court’s bona fide doubt—the threshold requirement for conducting a competency inquiry. However, as noted in note 4 supra, this amendment had not taken effect as of the time of these proceedings, and thus the court of criminal appeal’s holding in Montoya is still controlling in this case. 4 [COURT]: I hear you’ve been arguing out here audibly in the courtroom with your attorney. It’s obvious that there are some things that you don’t understand.
[APPELLANT]: Didn’t understand, yeah.
[COURT]: But I need to make sure you understand what you’re accused of today.
[APPELLANT]: Yeah.
[COURT]: Do you understand that?
[APPELLANT]: Yeah. Yes, sir.
[COURT]: Do you know what you’re accused of doing in the Indictment?
[APPELLANT]: No. Explain it to me, Your Honor.
[COURT]: You are indicted for the offense of Felony Bail Jumping. Do you understand that charge?
....
[COURT]: . . . Do you understand that Felony Bail Jumping is a third degree felony?
[APPELLANT]: No, I don’t understand that.
[COURT]: It is punishable by not less than two years nor more than 10 years in the penitentiary—do you understand that—and you could be assessed a fine in any amount not to exceed $10,000? Do you understand that?
After the trial judge subsequently asked, “[D]o you understand what you’re accused of, as
you stand before me at this moment[?]” appellant responded, “Yeah.”
5 Appellant thereafter made various outbursts during the trial, requiring the judge to
dismiss the jury and admonish appellant to not interrupt. For example, appellant called
the attorney who represented him in the earlier heroin possession case, and whom the
State called as a witness, a liar at the end of his testimony. Additionally, appellant
interrupted his attorney’s cross-examination and demanded to represent himself.
The trial court thereafter discussed whether appellant was competent to represent
himself at trial. Appellant informed the trial court that he was a disabled Vietnam War
veteran; that he suffered from post-traumatic stress disorder (“PTSD”) in the past; and
that he receives daily medication and treatment for mood changes. Appellant also said
that he has been taking medication for about thirty years and that he attended individual
and group therapy sessions, but that he did not take his medication that day. Although
appellant’s counsel from his earlier heroin case felt that appellant should not be permitted
to represent himself, his trial attorney thought that he could do so and informed the trial
court that appellant was competent to stand trial. Appellant subsequently withdrew his
motion to represent himself, explaining, “I could right now tell my attorney what I want him
to ask.” The trial judge stated, “Do you understand he’s obligated to employ his
professional skill in determining how to phrase the questions and exactly what to ask?
Do you understand that?” Appellant responded, “Well, that’s the way it should be, the
way I understand it.”
C. Analysis
The trial court inquired whether appellant had a factual and rational understanding
of the proceedings against him. The court’s lengthy pre-trial exchange with appellant,
6 only a portion of which is described above, concerned this prerequisite to competency.
That the court investigated whether appellant was competent to represent himself without
the assistance of an attorney is of no moment. The competency for self-representation
has never been the standard for competency to stand trial, and the trial court’s concern
hinged on appellant’s unfamiliarity with evidentiary and procedural rules. Further, in
considering whether appellant was competent to represent himself, appellant manifested
the ability to consult with his attorney with a reasonable degree of rational understanding.
The record shows that appellant disagreed with the trial judge, witnesses, and, at
times, his attorney’s trial strategy. Being difficult or argumentative, however, does not
prove one’s inability to consult with an attorney with a reasonable degree of rational
understanding or one’s ability to rationally and factually understand the proceedings.
See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (West 2006); Moore, 999 S.W.3d at 395
(“While appellant’s comments were inappropriate violations of court decorum, they do not
constitute evidence of his inability to consult with counsel, or factually appreciate the
proceedings against him.”). In fact, appellant confirmed that he understood the charges
and potential sentence against him, and his attempt to terminate his attorney’s
representation was abandoned after appellant reasoned that he could maintain control
over the trial strategy, subject to his attorney’s professional discretion.
The facts of this case are similar to the facts of Rojas v. State. See 228 S.W.3d
770 (Tex. App.—Amarillo 2007, no pet.). In Rojas, the defendant argued on appeal that
the trial court erred by not conducting an informal inquiry into his competency to stand
trial, even though “his conduct at trial was sufficiently bizarre to raise a bona fide doubt as
7 to his competency.” Id. at 772. Specifically, the defendant interrupted voir dire with
comments; answered the prosecutor’s questions to the venire panel; offered his
unsolicited views on the benefits of legalizing drug use and provided commentary on the
“differing treatment of drug users in other parts of the world;” responded during testimony
with answers that “tended to go beyond the question asked”; and “seized any opportunity
to express his view that police conspired to frame him.” Id. at 772–73. Our sister court
concluded, “His comments, while procedurally improper and almost certainly unwise,
evidenced a proper understanding of the proceeding and the factual basis for his
prosecution.” Id. at 773. The court held that the trial court did not abuse its discretion in
failing to conduct further informal inquiry. Id.
As the defendant in Rojas, appellant made unsolicited comments and commentary
in violation of courtroom decorum. Like the Rojas defendant, appellant offered his views
on the law. Unlike the defendant in Rojas, appellant’s testimony stayed within the scope
of the questions asked. After reviewing the record, we conclude that appellant’s conduct
did not rise to the level necessary to show an abuse of discretion by the trial court for not
conducting further inquiry into his competency to stand trial. See Lawrence, 169 S.W.3d
at 322 (defendant’s “rambling and nonresponsive answers” revealed “that he simply
wanted his day in court and wanted to tell his story his way.”).
Regarding appellant’s past PTSD, “evidence of past mental impairment is only
sufficient to raise a bona fide doubt about competency if the evidence indicates that the
defendant is presently ‘incapable of consulting with counsel or understanding the
proceedings against him.’” Iniquez v. State, 374 S.W.3d 611, 617 (Tex. App.—Austin
8 2012, no pet.) (quoting Moore, 999 S.W.2d at 395–96); see also Charley v. State, No.
05-08-01678-CR, 2010 WL 2510208, at *2 (Tex. App.—Dallas Jun. 23, 2010, pet. ref’d)
(mem. op., not designated for publication) (overruling defendant’s issue that the trial court
should have conducted an informal competency hearing based, in part, on his statements
that “he had been diagnosed with PTSD as a result of military service in Iraq,” suffered
flashbacks, was discharged from the military as a disabled veteran, and was on
medication). No such evidentiary showing has been made.
The record does not show that appellant lacked the sufficient competency to stand
trial. We defer to the trial court’s first-hand factual assessment of appellant’s mental
competency. See Montoya, 291 S.W.3d at 426; McDaniel, 98 S.W.3d at 713. We
overrule appellant’s first issue.
II. NOTICE OF INTENT TO OFFER EXTRANEOUS OFFENSE EVIDENCE
By his second issue, appellant contends the trial court erred in overruling his
objection that the State failed to provide reasonable notice of its intent to introduce
extraneous-offense evidence. We disagree.
On February 22, 2011, appellant requested notice of the State’s intention to use
extraneous-offense evidence. On Thursday, May 5, 2011, the State faxed appellant’s
attorney a copy of its notice of intent to use thirty-four instances of other crimes, wrongs,
or acts.6 On Tuesday, May 10, 2011, appellant’s trial began. Appellant requested the
trial court to hold the State’s notice untimely, arguing that appellant only had two business
6 The record does not reflect what crimes, wrongs or acts were included in the State’s notice. The State’s notice was not admitted into evidence, was not included in the record on appeal, and was not specifically discussed with respect to what specific crimes, wrongs or acts were being challenged.
9 days and the weekend between the notice and the trial. When the trial court asked
whether the evidence would be used during guilt/innocence or punishment, the State
answered, “Judge, if he testifies, we will get into the ones that Rule 609 allows us to, but
other than that, nothing.”7 The trial court overruled appellant’s objection.
We review a trial court’s rulings on the admissibility of extraneous offenses for an
abuse of discretion. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); Prible
v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). So long as the trial court’s ruling
is “within a ‘reasonable zone of disagreement,’” there is no abuse of discretion and the
ruling will be upheld. Devoe, 354 S.W.3d at 469 (quoting Prible, 175 S.W.3d at 731); see
Miller v. State, 343 S.W.3d 499, 503 (Tex. App.—Waco 2011, pet. ref’d) (citing Gonzalez
v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003)).
Texas Rule of Evidence 404(a) disallows the use of character evidence to prove
that an action is in conformity with a character trait, but rule 404(b) allows the use of
character evidence for non-conformity purposes. See TEX. R. EVID. 404(a), (b);
Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (en banc). If a
defendant timely requests reasonable notice of the State’s intent to use
extraneous-offense evidence under rule 404(b), the State must provide “reasonable
notice . . . in advance of trial . . . .” TEX. R. EVID. 404(b). “Rule 404(b) literally conditions
the admissibility of other-crimes evidence on the State's compliance with the notice
7 Rule 609 allows evidence of prior convictions to be used for impeachment purposes. See TEX. R. EVID. 609.
10 provision of Rule 404(b).” Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App.
2005) (citations omitted).
“There is no statutory meaning of ‘reasonable’ as provided in rule 404(b), in the
Code of Criminal Procedure, or otherwise in the Rules of Evidence.” Patton v. State, 25
S.W.3d 387, 392 (Tex. App.—Austin 2000, pet. ref’d). Courts generally focus on
whether the notice was sufficiently timely to be considered “reasonable.” Id. (citing
Neuman v. State, 951 S.W.2d 538, 540 (Tex. App.—Austin 1997, no pet.); Hernandez v.
State, 914 S.W.2d 226, 234–35 (Tex. App.—Waco 1996, no pet.); Self v. State, 860
S.W.2d 261, 264 (Tex. App.—Fort Worth 1993, pet. ref’d)). The reasonableness of the
State’s notice turns on the facts and circumstances of each case. Id. There is “no
bright line as to the number of days or amount of time” that defines “reasonable notice,”
and the trial court should determine the issue “on a case-by-case basis under the totality
of circumstances.” Id. at 393 (citing Ramirez v. State, 967 S.W.2d 919, 923 (Tex.
App.—Beaumont 1998, no pet.)).
B. Analysis
On appeal, appellant maintains the State failed to provide reasonable notice of its
intent to use extraneous-offense evidence, comparing the available preparation time in
this case to the inadequate preparation time in Hernandez v. State. See 914 S.W.2d at
234 (“We do not believe that a 404(b) response filed on a Friday afternoon [at 2:50 p.m.] is
adequate or reasonable notice for a trial beginning the following Monday morning”).
We must look to the contextual “facts and circumstances” to determine whether the
amount of time was reasonable. Patton, 25 S.W.3d at 392. The State provided notice
11 upon discovering the trial was set for the following week, and limited its use of 404(b)
evidence at trial to prior convictions only. Based on this background, we hold that the
four days between the State’s notice and appellant’s trial was not unreasonable. See id.
at 392 (holding adequate the State’s notice that was faxed on Sunday afternoon and
received by defendant’s counsel on Monday, the day before trial).
Even assuming arguendo notice was unreasonable, appellant failed to prove that
he was harmed, such as by showing he was surprised by the State’s proposed evidence
or how his defensive strategy would have been different had he been given notice earlier.
See Hernandez, 176 S.W.3d at 825–26 (to show harm resulting from a lack of reasonable
notice, defendant must show both he was surprised and how his defensive strategy would
have differed with proper notice). To the contrary, during appellant’s case-in-chief,
appellant took the stand to testify in his defense, and testified extensively regarding
numerous arrests and misdemeanors. The State’s evidence was presented in rebuttal
and was nominal in content. We overrule appellant’s second issue.
III. MOTION IN LIMINE
By his third issue, appellant contends the trial court erred in granting the State’s
motion in limine, which precluded appellant from attacking the merits of the underlying
possession charge, and thereby limited appellant’s defense to the merits of the
bond-jumping case.
Appellant did not object to the trial court’s ruling on the State’s motion in limine, and
appellant did not attempt to offer any evidence on the precluded defense. The Texas
Court of Criminal Appeals has held that “a ruling on a motion in limine that excludes
12 defense evidence is subject to reconsideration throughout trial and that to preserve error
an offer of the evidence must be made at trial.” Warner v. State, 969 S.W.2d 1, 2 (Tex.
Crim. App. 1998) (en banc) (citing Fuller v. State, 827 S.W.2d 919, 929 n.10 (Tex. Crim.
App. 1992)). Preservation of error is a prerequisite to presenting a complaint on appeal.
See TEX. R. APP. P. 33.1(a).
Appellant failed to preserve this issue for review on appeal. We overrule
appellant’s third issue.
IV. JURY CHARGE ERROR
By his fourth issue, appellant argues the trial court erred in commenting on his
defenses in the jury charge. Appellant contends that “by singling put [sic] the
continuance theory in its application of the law to the facts, it not only restricted the
defensive theories of Joseph’s case, it was a direct comment on the evidence.”
Appellant further complains that the instruction “completely ignored the [necessity]
defense . . . (that [he] wanted his day in court and fled only after the state arrested his
witness in the courthouse hallway, just prior to the jury selection).”
A. Jury Charge
The relevant portion of the jury charge reads, as follows:
You are instructed that it is a defense to Felony Bail Jumping and Failure to Appear in accordance with the terms of release that the person failing to appear had a reasonable excuse for such failure. A “reasonable excuse” is one that would be advanced by an ordinary and prudent person in the same circumstances as the person offering the excuse.
Therefore, if you find from the evidence beyond a reasonable doubt that on or about August 30th, 2010, the Defendant intentionally or knowingly failed to appear in accordance with the terms of his release but further find from the evidence that the Defendant’s excuse for his failure to
13 appear, to-wit, that he thought his case had been delayed for 30 days, is a reasonable excuse, then you will acquit the Defendant and say by your verdict “Not Guilty.”
Appellant did not object to the court’s jury charge, and the record does not show any
request by appellant for the inclusion of a defensive instruction on necessity.
Our first step is to determine whether the jury charge contains error. See Mann v.
State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998) (en banc); Steadman v. State, 160
S.W.3d 582, 585 (Tex. App.—Waco 2005, pet. ref’d). Jury-charge error, however, need
not be preserved for review on appeal. See Mann, 964 S.W.2d at 641; Steadman, 160
S.W.3d at 585). Rather, the harm analysis is different for unpreserved error than for
preserved error: “Where there has been a timely objection made at trial, an appellate
court will search for only ‘some harm.’ By contrast, where the error is urged for the first
time on appeal, a reviewing court will search for ‘egregious harm.’” Mann, 964 S.W.2d at
641 (quoting Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994)).
1. Comment on the Weight of the Evidence
A trial court may not comment on the weight of the evidence in a jury charge, and is
prohibited from expressing any opinion as to the weight of the evidence, from summing up
testimony, from discussing facts, or from using any argument in the charge calculated to
arouse the sympathy or to excite the passions of the jury. TEX. CODE CRIM. PROC. ANN.
art. 36.14 (West 2007). A charge that constitutes a comment by the court on the
elements of the offense charged or assumes the truth of a controverted issue is a
comment on the weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d
14 26, 32 (Tex. Crim. App. 1986) (en banc); Grady v. State, 634 S.W.2d 316, 317 (Tex. Crim.
App. 1982) (panel op.). In determining whether a charge comments on the weight of the
evidence, we review the “‘charge as a whole rather than as a series of isolated
statements.’” Smith v. State, 959 S.W.2d 1, 27 (Tex. App.—Waco 1997, pet. ref’d)
(quoting Kitt v. State, 875 S.W.2d 19, 20 (Tex. App.—Texarkana 1994, pet. ref’d)); see
Whaley, 717 S.W.2d at 32.
We conclude the trial court did not comment on the weight of the evidence by
tracking the applicable statutory language, including the codified defense of “reasonable
excuse.” See TEX. PENAL CODE ANN. § 38.10(c) (West 2011); see also Gallegos v. State,
828 S.W.2d 577, 579 n. 1 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (citing M.
TEAGUE, TEXAS CRIMINAL PRACTICE GUIDE §133.110 [2] (1992)) (suggesting a substantially
similar jury charge for the “reasonable excuse” defense). A court’s usage of statutory
language in the jury charge does not fall within the precluded conduct of article 36.14 of
the Texas Code of Criminal Procedure, nor does it assume the truth of a controverted
issue. See TEX. CODE CRIM. PROC. ANN. art. 36.14; Whaley, 717 S.W.2d at 32; Grady,
634 S.W.2d at 317.
2. Defensive Instructions
“A trial court does not have a duty to sua sponte instruct the jury on a defensive
issue raised by the evidence.” Caminorreal v. State, 374 S.W.3d 479, 482 (Tex.
App.—Corpus Christi 2012, no pet.) (citing Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim.
App. 1998) (en banc); Vasquez v. State, 2 S.W.3d 355, 362 (Tex. App.—San Antonio
1999, pet. ref'd)); see Carroll v. State, 266 S.W.3d 1, 3 (Tex. App.—Waco 2008, pet.
15 ref’d). The defense must request an instruction for there be error. Williams v. State,
273 S.W.3d 200, 223 (Tex. Crim. App. 2008) (citing Posey, 966 S.W.2d at 63).
In the application section, the jury charge shows that the trial court submitted
appellant’s mistake of fact defense—he thought his case had been delayed for 30
days—as a potential “reasonable excuse.” The trial court did not err by omitting the
unrequested defensive theory of “necessity” in the jury charge. We overrule appellant’s
fourth issue.
V. JURY ARGUMENT
By his fifth issue, appellant argues the trial court erred in sustaining the State’s
objection to defense counsel’s statements during closing argument about the State’s
paperwork containing inconsistent dates for appellant’s failure to appear. The following
is the relevant section of the argument:
[DEFENSE]: I found it interesting, in the Indictment there is a lot to do about August 30th being the date that he failed to show, and in the grand scheme of things, an Indictment, as you know, is no evidence of any guilt, and the Court instructs you of that. But when the State has all the resources it has, all the information such as what the State’s evidence is—and in here, and you’ll take them back and you can look at them—several of the documents say he didn’t show on the 30th and several say he didn’t show on the 31st. This is the State’s paperwork. This is not our paperwork. You know, you would think when they are trying to deprive one of our citizens of their liberty, they would get it right. I mean, isn’t that a reasonable argument? Now, is that enough to let him go? I don’t know.
[STATE]: Judge, I’m going to object. That’s a misstatement of the law. It is not enough to let him go, and they have just been instructed we don’t have to prove—
[COURT]: Sustained.
16 [DEFENSE]: It may create reasonable doubt.
[STATE]: Judge, actually, that’s a misstatement of the law. We don’t have to prove what day it was.
[COURT]: I sustain the objection.
On appeal, appellant insists that the State misconstrued his counsel’s statements.
Appellant asserts that defense counsel was attempting to argue “the conflicting
paperwork might have confused appellant as to when he was required to be in Court”
rather than challenge the sufficiency of the evidence on the date element.
We review the trial court’s ruling on the State’s objection to appellant’s jury
argument for abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim.
App. 2010). A trial court abuses its discretion if its decision is arbitrary or unreasonable.
Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995) (en banc); Lawrence v. State, 169
S.W.3d 319, 322 (Tex. App.—Fort Worth 2005, pet. ref’d). The trial court has broad
discretion in controlling the scope of closing argument, but it may not prevent defense
counsel from making a point essential to the defense. Lemos v. State, 130 S.W.3d 888,
892 (Tex. App.—El Paso 2004, no pet.). Prohibiting counsel from making such a jury
argument constitutes denial of the defendant's right to counsel. Davis, 329 S.W.3d at
825. Jury argument that misstates the law or is contrary to the court's jury charge is
improper. See Thomas v. State, 336 S.W.3d 703, 713 (Tex. App.—Houston [1st Dist.]
2010, pet. ref'd); Peak v. State, 57 S.W.3d 14, 18 (Tex. App.—Houston [14th Dist.] 2001,
no pet.). We determine de novo whether a party misstated the law during jury argument.
Thomas, 336 S.W.3d at 713.
17 B. Analysis
The trial court did not abuse its discretion. On its face, the comment was about
the inconsistency of the dates on which appellant failed to show—documents, including
the indictment for bail jumping, that were drafted after appellant failed to show; those
documents were therefore incapable of causing appellant’s bond jumping. The
comment did not cover pre-offense documents, and the sustained objection did not
preclude an argument that appellant was confused about the date on which he was to
appear.
Considering the court’s broad discretion in controlling the scope of closing
argument, we hold that the trial court did not err in sustaining the State’s objection, and it
did not prevent defense counsel from making a point essential to the defense. See
Lemos, 130 S.W.3d at 892. We overrule appellant’s fifth issue.
VI. COMMENTS ON PAROLE LAW
By his sixth issue, appellant argues the trial court erred by overruling his objection
to the State’s comments about his eligibility for parole that were made during the State’s
argument in the punishment phase. The complained-of comment, objection, and ruling
come from the following excerpt:
[STATE]: Now, you’ll see on the bottom of Page 4 in your charge that he will be eligible for parole after he serves one-fourth, so you need to think about that. The minimum is 25, so if you decide—
[DEFENSE]: Judge, I’m going to object to that. He may or may not be eligible, and the Court instructs this jury that they are not to consider that.
[STATE]: No, he is eligible, Judge.
18 [COURT]: He’ll be eligible, plus any good conduct time.
[DEFENSE]: But it doesn’t mean he’ll get it.
[COURT]: That doesn’t mean he’ll get it, but he will be eligible.
[STATE]: So, like I said, if you’ll read on Page 4, the law is, after he serves one-fourth, he is eligible to get out. So if you think, “We want him to serve a certain number before he has even got the chance to get out,” you have to multiply by four. So 25 would actually equal about six. If you give them [sic] 25, after about six, he can get parole. Will they give it to him? I don’t know. But he will be eligible for it. So that’s something you-all need to keep in mind.
Relevant to this appellate issue, the jury instruction contained the following:
Under the law applicable in this case, if the Defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served, plus any good conduct time he may earn, if any, equals one-fourth (1/4) of the sentence imposed or fifteen years, whichever is less. Eligibility for parole does not guarantee that parole will be granted.
This instruction tracks the statutorily-provided instruction relevant to this case. See TEX.
CODE CRIM. PROC. ANN. art. 37.07 § 4(b) (West Supp. 2011). On appeal, appellant
maintains that the State’s parole argument was improper.
We review the trial court’s ruling on jury argument for an abuse of discretion. See
York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref’d); Cole v. State,
194 S.W.3d 538, 546 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Montgomery v.
State, 198 S.W.3d 67, 95 (Tex. App.—Fort Worth 2006, pet. ref’d). To be permissible,
the State’s jury argument must fall within one of the four permissible areas of jury
19 argument: (1) summation of the evidence; (2) reasonable deduction from the evidence;
(3) answer to an argument of opposing counsel; or (4) plea for law enforcement. See
Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011) (citing Brown v. State,
270 S.W.3d 564, 570 (Tex. Crim. App. 2008)); Lopez v. State, 288 S.W.3d 148, 159–60
(Tex. App.—Corpus Christi 2009, pet. ref’d); see also Harris v. State, 996 S.W.2d 232,
237 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing Washington v. State, 668
S.W.2d 715, 718 (Tex. App.—Houston [14th Dist.] 1983, no pet.) (confirming the four
“categories apply equally to both the guilt-innocence and punishment phases of a criminal
trial”)). The reviewing court should uphold the trial court’s ruling if it is within the zone of
reasonable disagreement. Espinosa v. State, 328 S.W.3d 32, 38 (Tex. App.—Corpus
Christi 2010, pet. ref’d) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App.
2004)).
Summation of parole law, as long as it is accurate and not specifically applied to a
defendant, falls within the permissible area of “proper plea for law enforcement.” See
Holt v. State, 899 S.W.2d 22, 25 (Tex. App.—Tyler 1995, no pet.). At issue here is
whether the prosecutor’s discussion of appellant’s eligibility for parole constituted specific
application of parole law to the defendant, which is impermissible. See, e.g., Daniels v.
State, 633 S.W.2d 899, 902 (Tex. Crim. App. 1982) (panel op.) (citations omitted).
The Texas Code of Criminal Procedure requires that a jury be given instructions
about parole eligibility. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(b) (West Supp.
2011). The Court of Criminal Appeals, in considering a prosecutor’s summation of
20 parole law, has concluded that it is not “improper for the prosecutor to accurately restate
the law given in the jury charge.” Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App.
1984) (en banc); see also Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007).
In Taylor, the court of criminal appeals considered the following comments given
by a prosecutor during jury argument at the punishment phase:
Now let me stop and talk to you about the charge for just a moment so that you can—you probably do understand already, but the Judge mentioned to you that as far as parole eligibility that the defendant becomes eligible for parole after he serves one-half of the sentence imposed or thirty years. Let me explain that to you for just a moment. Let’s say a sentence of 40 years—
A 40-year sentence means the defendant becomes eligible for parole after serving 20 years.
A 60-year sentence means he becomes eligible after serving 30 years. A sentence of life or 75 still means he becomes eligible after 30 years.
Taylor, 233 S.W.3d at 359. After considering the foregoing discussion of the defendant’s
parole eligibility, the court of criminal appeals held that the prosecutor “did not convey any
information beyond what was properly contained in the charge when he explained how
the parole eligibility rules set out in the charge worked with forty, sixty and seventy-five
year sentences.” Id.
Here, the State’s comments about parole law, like the prosecutor’s comments in
Taylor, merely explained what was properly included in the jury charge. Moreover, the
State emphasized, “Will they give it [parole] to him? I don’t know. But he will be eligible
for it. So that’s something you-all need to keep in mind.” This argument invited the jury
21 to do what it can properly do—“determine how long a term it wishes a defendant to serve
before that defendant may become eligible for parole . . . .” Waters v. State, 330 S.W.3d
368, 374 (Tex. App.—Fort Worth 2011, pet. ref’d) (citations omitted); see also Taylor, 233
S.W.3d at 360 (Womack, J. concurring) (“[T]he jury may base its assessment of
punishment in part on consideration of a sentenced defendant’s parole eligibility . . . .”
(quoting Byrd v. State, 192 S.W.3d 69, 72 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’’d))).
We hold that the trial court did not abuse its discretion in overruling appellant’s
objection. See Taylor, 233 S.W.3d at 359; Waters, 330 S.W.3d at 374; York v. State,
258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref’d); Cole v. State, 194 S.W.3d 538,
546 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We overrule appellant’s sixth
issue.
VII. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 11th day of April, 2013.