ACCEPTED 05-14-00634-cr FIFTH COURT OF APPEALS DALLAS, TEXAS 12/29/2014 5:08:36 PM LISA MATZ CLERK
5th Court of Appeals FILED: 12-30-2014 Lisa Matz, Clerk In the Court of Appeals for the Fifth District of Texas at Dallas
SOLOMON HAILU SOLOMON, § Appellant § § v. § No. 05-14-00634-CR § THE STATE OF TEXAS, § Appellee §
Appealed from Cause Number 001-859520-2013 in the County Court at Law No. 1 of Collin County, Texas, the Honorable Richard Mays, Judge Presiding by Assignment at the Suppression Hearing, and the Honorable Corinne Mason, Judge Presiding at Trial. §§§ STATE’S BRIEF §§§
GREG WILLIS Criminal District Attorney Collin County, Texas
JOHN R. ROLATER, JR. Assistant Criminal District Attorney Chief of the Appellate Division
Oral argument is requested, ANDREA L. WESTERFELD but only if Appellant also Assistant Criminal District Attorney requests oral argument. 2100 Bloomdale Rd., Suite 200 McKinney, Texas 75071 (972) 548-4323 FAX (214) 491-4860 State Bar No. 24042143 awesterfeld@co.collin.tx.us
REBECCA CULPEPPER & GEETA SINGLETARY Assistant Criminal District Attorneys TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................... i
INDEX OF AUTHORITIES ................................................................................ iii
STATEMENT REGARDING ORAL ARGUMENT ............................................1
STATEMENT OF THE CASE ..............................................................................1
STATEMENT OF FACTS .....................................................................................1
SUMMARY OF THE STATE’S ARGUMENTS .................................................4
STATE’S REPLY TO APPELLANT’S FIRST ISSUE (DENIAL OF MOTION TO SUPPRESS) .............................................................5
The officer’s initial approach to Appellant was a consensual encounter because he merely approached a parked car without blocking Appellant’s access or indicating compliance was required. Additionally, the officer had reasonable suspicion to detain Appellant based on his violation of a city curfew by parking at a closed city park.
Standard of Review .............................................................................................5
Argument & Authorities .....................................................................................6
I. The officer’s approach was a consensual encounter ....................................6
II. The officer had reasonable suspicion that Appellant was violating a city ordinance........................................................................................................11
STATE’S REPLY TO APPELLANT’S SECOND ISSUE (PROSECUTOR STATEMENTS IN VOIR DIRE AND CLOSING ARGUMENT) ......................................................................................................14
This issue should be dismissed as multifarious because it raises complaints regarding four separate factual events and at least four distinct legal complaints. Additionally, Appellant did not preserve
i error on any of his complaints because he did not object and the complaints do not raise fundamental error. Finally, Appellant should not prevail on the merits. The prosecutor’s comments during voir dire did not improperly shift the burden of proof or deprive Appellant of a jury verdict because they were merely an accurate statement of the law. The prosecutor’s closing argument did not present herself as a witness or comment on the defendant’s failure to testify because it was a summary of the evidence presented at trial. And any error in the comments was harmless.
Standard of Review ...........................................................................................14
Relevant Facts ...................................................................................................15
I. Voir dire .....................................................................................................15
II. Closing argument ......................................................................................15
Argument & Authorities ...................................................................................16
I. This issue should be dismissed as multifarious .........................................16
II. Appellant did not preserve his complaints for review ..............................17
III. The prosecutor’s comments during voir dire were not improper ............20
IV. The prosecutor’s closing argument was not improper ............................22
PRAYER...............................................................................................................26
CERTIFICATE OF SERVICE .............................................................................27
CERTIFICATE OF COMPLIANCE ...................................................................27
ii INDEX OF AUTHORITIES
Statutes, Codes, and Rules
TEX. R. APP. P. 33.1(a)(1) ........................................................................................17
TEX. R. EVID. 204 .....................................................................................................11
Code of Ordinances, City of Richardson, Texas, Sec. 15-61(18) ........................... 11
Cases
Archie v. State, 221 S.W.3d 695 (Tex. Crim. App. 2007) .............................................................14
Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002) .................................................................14
Bustamante v. State, 48 S.W.3d 761 (Tex. Crim. App. 2001) ...............................................................24
Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) .................................................................5
Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010) .................................................................7
Cruz v. State, 877 S.W.2d 863 (Tex. App.—Beaumont 1994, pet. ref'd)...................................18
Draughon v. State, 831 S.W.2d 331 (Tex. Crim. App. 1992) .............................................................18
Edwards v. State, No. 05-09-01496-CR, 2011 WL 3795696 (Tex. App.—Dallas Aug. 29, 2011, no pet.) (not designated for publication) ..................................................................... 16, 17
Espinosa v. State, 194 S.W.3d 703(Tex. App.—Houston [14th Dist.] 2006, no pet.) ......................18
iii Gaddis v. State, 753 S.W.2d 396 (Tex. Crim. App. 1988) .............................................................22
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) ...............................................................25
Howard v. State, 932 S.W.2d 216 (Tex. App.—Texarkana 1996, pet. ref'd) ..................................11
Hunter v. State, 955 S.W.2d 102 (Tex. Crim. App. 1997) ...........................................................6, 7
Johnson v. State, 414 S.W.3d 184 (Tex. Crim. App. 2013) ...............................................................8
Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) .................................................................5
Johnson v. State, 912 S.W.2d 227 (Tex. Crim. App. 1995) ...........................................................6, 8
Kimbrell v. State, No. 05-00-00156-CR, 2001 WL 46153 (Tex. App.—Dallas May 3, 2001, pet. ref'd) (not designated for publication) ............................................................................19
Landrum v. State, No. 05-90-01610-CR, 1993 WL 147034 (Tex. App.—Dallas May 5, 1993, no pet.) (not designated for publication) ............................................................................19
Martinez v. State, 924 S.W.2d 693 (Tex. Crim. App. 1996) .............................................................16
Mathis v. State, 67 S.W.3d 918 (Tex. Crim. App. 2002) ...............................................................19
iv Milburn v. State, 973 S.W.2d 337(Tex. App.—Houston [14th Dist.] 1998, rev'd on other grounds, 3 S.W.3d 918 (Tex. Crim. App. 1999) .................................................................23
Miller v. State, 330 S.W.2d 466 (Tex. Crim. App. 1959) .............................................................20
Miller v. State, 393 S.W.3d 255 (Tex. Crim. App. 2012) ...............................................................5
Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002) ...............................................................21
Padrino v. State, No. 05-05-01596-CR, 2007 WL 241159 (Tex. App.—Dallas Jan. 30, 2007, no pet.) (not designated for publication) ............................................................................19
Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) .............................................................24
Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001) ...............................................................14
Salazar v. State, 131 S.W.3d 210 (Tex. App.—Fort Worth 2004, pet. ref'd) .................................19
Saldano v. State, 70 S.W.3d 873, 886-87 (Tex. Crim. App. 2002) .................................................. 18
Smith v. State, 721 S.W.2d 844 (Tex. Crim. App. 1986) .............................................................19
Smith v. State, No. 2-04-261-CR, 2005 WL 1405812 (Tex. App.—Fort Worth June 16, 2005, pet. ref'd) (not designated for publication) ............................................................................11
State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008) .................................................... 7, 8, 10
v State v. Perez, 85 S.W.3d 817 (Tex. Crim. App. 2002) .................................................................6
Sterling v. State, 800 S.W.2d 513 (Tex. Crim. App. 1990) .............................................................16
Terry v. Ohio, 392 U.S. 1 (1968) .................................................................................................11
Trevino v. State, 979 S.W.2d 78 (Tex. App.—Austin 1998, pet. ref'd) ..........................................24
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) ...............................................................22
Young v. State, 137 S.W.3d 65 (Tex. Crim. App. 2004) ...............................................................18
vi STATEMENT REGARDING ORAL ARGUMENT
The State does not believe oral argument will assist the Court in developing
the issues in this case. However, if oral argument is granted to Appellant, the State
requests the opportunity to respond.
STATEMENT OF THE CASE
Solomon Solomon (“Appellant”) was charged by information with
possession of under two ounces of marijuana and pleaded not guilty before a jury.
CR 9; 3 RR 61. The jury convicted him, and the trial court sentenced Appellant to
12 months of community supervision and a $300 fine. CR 48, 50; 3 RR 141, 145.
STATEMENT OF FACTS
Officer Brad Shackleford of the Richardson Police Department was on
routine patrol in the early morning hours of July 28, 2013, when he noticed a single
car parked at a city park. 2 RR 5-6. It was 2:23 a.m., and the city curfew for parks
was 10:30 p.m. 2 RR 6, 8. The curfew was noted on a sign at the entrance to the
park. 2 RR 16. The car was parked at an entrance to a trail, and in the officer’s
experience, “usually people are down there in that time of morning doing things
that are illegal.” 2 RR 8. So he pulled into the parking lot and parked to the side of
the car, not blocking in the other car. 2 RR 10. Officer Shackleford specifically
noted that the driver of the other car “could have backed out easily.” 2 RR 10. The
1 video of the stop showed the officer’s car parked perpendicular to Appellant’s car,
with no other cars in the area. SX 2.1 The officer activated his spotlight as he
turned into the parking lot. 2 RR 14.
As soon as he approached the car, Officer Shackleford noted the smell of
marijuana and saw marijuana on the passenger—Appellant’s—shirt and pants. 2
RR 10. The officer asked Appellant and the driver, identified only as “Ms.
McLloyd,” for their identification and told them, “Well, the park’s kinda closed.” 2
RR 9-10; SX 2 at 2:24:01-03. He returned to his car to run their identification, then
came back and asked McLloyd to step out of the car. 2 RR 11. He told her that he
smelled marijuana, and she admitted there was marijuana under the driver’s seat. 2
RR 11. When he searched the car, Officer Shackleford found marijuana under the
driver’s seat plus a cigarette box with more marijuana and a pipe in the center
console. 2 RR 11. McLloyd denied the marijuana in the console was hers, and
Appellant was charged with its possession. 2 RR 12.
The trial court held a pre-trial hearing on Appellant’s motion to suppress. 2
RR 1. In addition to the above testimony from Officer Shackleford, Appellant
offered Defense Exhibit 1, a video of the park entrance he had taken the morning
of the hearing, purporting to show that there was no sign marking the curfew. 2 RR
1 The video was admitted as State’s Exhibit 1 at the suppression hearing and State’s Exhibit 2 at the trial. The State will cite to it here as State’s Exhibit 2.
2 17, 23-24. The trial court denied the motion to suppress without making findings of
fact and conclusions of law. CR 24; 2 RR 30.
At trial, Officer Shackleford again testified that he encountered Appellant as
the passenger in a car parked “in the park” at Spring Creek Trail at approximately
2:30 in the morning. 3 RR 66-67. The “park curfew” in Richardson is 10:30 p.m.
until 5:30 a.m. 3 RR 66-67. The park curfew was indicated at the entrance to the
parking lot by a white sign with black lettering mounted on a pole. 3 RR 90-91. In
the officer’s experience, people parked at a closed park in the dark to “commit
sexual acts, do drugs, etc.” 3 RR 83. Officer Shackleford approached the car and
immediately smelled the odor of marijuana and saw marijuana leaves on
appellant’s shirt and pants. 3 RR 68, 79. The driver admitted to having marijuana
in the car, and upon searching it Officer Shackleford found the marijuana under the
driver’s seat that the driver claimed and marijuana in a cigarette box in the center
console. 3 RR 69. Appellant and the driver were both arrested for possession of
marijuana.
3 SUMMARY OF THE STATE’S ARGUMENTS
State’s Reply to Appellant’s First Issue:
The officer’s initial approach to Appellant was a consensual encounter
because he merely approached a parked car without blocking Appellant’s access or
indicating compliance was required. Additionally, the officer had reasonable
suspicion to detain Appellant based on his violation of a city curfew by parking at
a closed city park.
State’s Reply to Appellant’s Second Issue:
This issue should be dismissed as multifarious because it raises complaints
regarding four separate factual events and at least four distinct legal complaints.
Additionally, Appellant did not preserve error on any of his complaints because he
did not object and the complaints do not raise fundamental error. Finally,
Appellant should not prevail on the merits. The prosecutor’s comments during voir
dire did not improperly shift the burden of proof or deprive Appellant of a jury
verdict because they were merely an accurate statement of the law. The
prosecutor’s closing argument did not present herself as a witness or comment on
the defendant’s failure to testify because it was a summary of the evidence
presented at trial. And any error in the comments was harmless.
4 STATE’S REPLY TO APPELLANT’S FIRST ISSUE (DENIAL OF MOTION TO SUPPRESS)
Appellant complains that the trial court improperly denied his motion to suppress the police stop because there was no reasonable suspicion to support his detention. But the officer’s initial approach was a consensual encounter because he merely approached a parked car without blocking Appellant’s access or indicating compliance was required. Additionally, the officer had reasonable suspicion to detain Appellant based on his violation of a city curfew by parking at a closed city park.
Standard of Review:
A motion to suppress is reviewed with a bifurcated standard. Johnson v.
State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). Almost total deference is
afforded to the trial court’s determination of historical facts because the trial court
is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Id. But whether a trial court properly applied the law to the facts is
reviewed with deference only so far as it turns on an evaluation of credibility and
demeanor, and mixed questions of law and fact are reviewed de novo. Id.
The evidence is considered in the light most favorable to the trial court’s
ruling. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). The trial
court’s ruling should be upheld so long as it is correct under any valid legal theory,
regardless of whether the reason was argued before the court. See Miller v. State,
393 S.W.3d 255, 263 (Tex. Crim. App. 2012).
5 Argument & Authorities:
There are three categories of interactions between police officers and
citizens: (1) encounters, (2) investigative detentions, and (3) arrests. State v. Perez,
85 S.W.3d 817, 819 (Tex. Crim. App. 2002). The trial court properly denied
Appellant’s motion to suppress because his interaction with Officer Shackleford
was merely a consensual encounter not requiring justification, or alternatively
because any detention was proper based on reasonable suspicion Appellant was
violating a city curfew ordinance.
I. The officer’s approach was a consensual encounter
First, Officer Shackleford’s interaction with Appellant was merely a
consensual encounter. Unlike investigative detentions and arrests, encounters are
consensual interactions that the citizen is free to terminate at any time. Johnson v.
State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). Encounters do not, therefore,
require the justification of either reasonable suspicion or probable cause. Id. “A
police officer is just as free as any other citizen to stop and ask questions of a
fellow citizen.” Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997).
Encounters are consensual until a reasonable person would believe he was not free
to leave and has either yielded to the officer’s show of authority or been physically
forced to yield. Johnson, 912 S.W.2d at 236.
6 In the instant case, Officer Shackleford did not detain Appellant during their
initial encounter. Generally the police are as free as anyone else to approach a
parked car and ask for identification, so long as he does not convey that
compliance is required. State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim.
App. 2008); Hunter, 955 S.W.2d at 104. Here, Officer Shackleford merely parked
next to Appellant’s parked car, approached, and spoke in a conversational voice. 2
RR 8-10; SX 2. Nothing in his demeanor or behavior would convey to a reasonable
person that they were not free to leave. Thus, the interaction was a mere encounter.
Appellant primarily relies on two factors to argue the entire interaction was a
detention—the use of a spotlight and the officer “parking in a manner which would
require some maneuvering to leave.” Appellant’s Brief at 12. But the Court of
Criminal Appeals has repeatedly noted that “while emergency lights are often
involved in detention scenarios, spotlight use is often classified as necessary during
police-citizen encounters and its use will not necessarily convert an encounter into
an investigatory detention.” Crain v. State, 315 S.W.3d 43, 50 (Tex. Crim. App.
2010), citing Garcia-Cantu, 253 S.W.3d at 236. Use of a spotlight is merely a
factor to consider in the totality of the circumstances. Id. at 51. In Crain, it was
only when the spotlight was combined with the command “come here and talk to
me” that the encounter became a detention. Id. In Garcia-Cantu, the Court
concluded that a detention occurred where the officer’s car “boxed in” the
7 defendant’s vehicle, preventing him from leaving, approached him in an
“authoritative manner,” and asked him, “What are you doing here?” in addition to
merely shining a spotlight.2 Garcia-Cantu, 253 S.W.3d at 246-47. And in Johnson
v. State, the Court found that shining a spotlight “perhaps” could indicate a
detention but was only “certainly” a detention when combined with the officer
parking to block the defendant’s vehicle. Johnson v. State, 414 S.W.3d 184, 193
(Tex. Crim. App. 2013).
Thus, the use of a spotlight here only would amount to a detention if
combined with the officer blocking Appellant’s vehicle. But he did not do so.
Officer Shackleford testified that he parked “to the side” of Appellant’s car and
Appellant “could have backed out easily.” 2 RR 10. Appellant argues that the
officer’s testimony could not be believed because the in-car video showed that he
parked “roughly 70-80 degrees with the rear passenger-side of Appellant’s
vehicle” and Appellant could not have backed out without maneuvering around the
officer’s car. Appellant’s Brief at 8-9. But the video shows the officer pulling up
and parking perpendicular to Appellant’s car. SX 2 at 2:23. There was ample room
for Appellant’s vehicle to back out and exit the parking lot, as Officer Shackleford
testified. The trial court could reasonably determine, based on the video and the
2 Additionally, Garcia-Cantu was a State’s appeal. The Court specifically noted that the facts did not necessarily establish a detention and deferred to the trial court’s fact-finding. Garcia-Cantu, 253 S.W.3d. at 248. It added, however, that had the trial court under the same facts ruled in favor of the State—as is the case in the instant case—it would have upheld the finding. Id. at 250.
8 officer’s testimony, that Appellant’s vehicle was not blocked and thus the mere use
of the spotlight alone was not enough to amount to a detention.
Appellant also argues that Officer Shackleford blocked him from leaving by
leaning on the side of his car to talk to him. Appellant’s Brief at 9-10. But only the
officer’s initial approach is relevant to the consensual encounter analysis because
Officer Shackleford saw marijuana leaves on Appellant’s shirt and smelled the
odor of marijuana as soon as he approached the car, giving him ample suspicion to
detain Appellant further. 2 RR 10; 3 RR 68. Appellant claims that this cannot be
considered because the State “failed to develop specifically when these
observations were made.” Appellant’s Brief at 12 n.6. But the officer testified
during the suppression hearing that the sight and odor of marijuana was his “first
observation.” 2 RR 10. At trial, he said this observation occurred “[i]mmediately as
I approached the car.” 3 RR 68. “First” and “immediate” both indicate primacy,
that these observations occurred before any of the officer’s other interactions. The
trial court could justifiably conclude that the officer made these observations
immediately as he arrived at the car and before any of his other actions, such as
leaning on the car or talking to the two occupants. Indeed, noting a smell or leaves
clearly scattered on a person’s clothing are not things that would take much time to
notice.
9 Appellant also argues that the interaction was a detention because the officer
testified that they were not free to leave. Appellant’s Brief at 10 n.5. During the
trial, Officer Shackleford testified, “If you are asking if she was free to drive away
as I approached, the answer is no based on a curfew violation, but consensual
contact, yes, but once I smelled the marijuana that’s all over.” 3 RR 93. Thus, he
testified both that the contact was consensual and non-consensual at the same time.
This testimony was at the least confusing. But Officer Shackleford testified both
before and after that statement that the encounter was consensual and Appellant
and McLloyd were free to leave. 2 RR 8-9, 10; 3 RR 93. It was the trial court’s
task to resolve any conflict in the testimony. Regardless, the officer’s subjective
intent is irrelevant unless that intent was conveyed to the citizen. Garcia-Cantu,
253 S.W.3d at 244 n.41.
The mere use of a spotlight to illuminate a dark area does not amount to a
detention. Because the use of a spotlight here was not combined with any other
factors, such as blocking Appellant’s vehicle, to prevent Appellant from leaving or
communicating that his compliance was required, the initial interaction was a mere
encounter that did not require any particular suspicion to justify. The trial court
properly overruled Appellant’s motion to suppress. His first issue should be
overruled.
10 II. The officer had reasonable suspicion that Appellant was violating a city ordinance
Even if Officer Shackleford’s interaction with Appellant arose to the level of
a detention, it was nonetheless justified by reasonable suspicion he was violating a
city curfew ordinance. An officer may temporarily detain a person he has
reasonable suspicion of committing a crime. Terry v. Ohio, 392 U.S. 1, 19 (1968).
The suspected violation of a city ordinance is sufficient to authorize an
investigative detention. Howard v. State, 932 S.W.2d 216, 218-19 (Tex. App.—
Texarkana 1996, pet. ref’d).
Here, Officer Shackleford testified that Appellant was parked at a city park
in violation of a Richardson city ordinance setting a curfew of 10:30 p.m. 2 RR 6,
8; 3 RR 66-67. Richardson prohibits any person to “remain, stay, or loiter in any
park between the hours of 10:30 p.m. and 5:00 a.m.” Code of Ordinances, City of
Richardson, Texas, Sec. 15-61(18).3 Officer Shackleford’s testimony that
Appellant was parked in violation of a city ordinance is sufficient to support a
detention. See Howard, 932 S.W.2d at 218-19; Smith v. State, No. 2-04-261-CR,
2005 WL 1405812, at *3 (Tex. App.—Fort Worth June 16, 2005, pet. ref’d) (not
designated for publication) (“an officer’s expressed belief that a person was
violating a city ordinance is sufficient to justify an investigatory stop”).
3 A copy of the ordinance is attached as an appendix. A court may take judicial notice of any municipal ordinance on its own motion or upon the motion of either party. Tex. R. Evid. 204.
11 Appellant argues that the city ordinance could not provide reasonable
suspicion for a detention because he “was in a parking lot when the officer
detained him, not in a park” and the “record and law are both silent on whether a
parking lot adjacent to a park falls under the definition of ‘park’.” Appellant’s
Brief at 12-13. But Officer Shackleford did not testify that Appellant was in “a
parking lot adjacent to a park.” He testified that he saw “a car parked at a park”
and further explained he wanted to know “why [the car] was parked there in the
park.” 2 RR 6, 8. He also identified it as “the parking lot of that park.” 2 RR 10. At
trial, Officer Shackleford similarly testified that he saw “a car in the park” and that
he “pulled into the park” next to it. 3 RR 66. Indeed, the city sign posting the park
hours was located “at the entrance to the park,” which was later clarified as “at the
entrance of that parking lot.” 3 RR 90. Thus, the testimony clearly established that
the parking lot was not merely “adjacent” to the park as Appellant contends but
rather part of the park.
Appellant also argues that “despite the officer’s assertion to the contrary,
there is no signage indicating the adjacent lot was closed,” citing State’s Exhibit 2
and Defense Exhibit 1. Appellant’s Brief at 13. But the trial court was not required
to credit Defense Exhibit 1, which only Appellant’s testimony established as a
video of the same lot and even Appellant admitted had been taken months after the
offense occurred. 2 RR 17, 23-24. And State’s Exhibit 2 does not show that no
12 such sign existed. Indeed, it shows a number of white signs on poles in the parking
lot that match the officer’s description, although none are legible from the angle of
the video. Additionally, as the “street view” function Appellant cites to is merely a
link to Google Maps, it is apparent that view is not a view as it existed at the
moment of the stop. At the very least, it was taken at a different time of day, as the
street view reflects daytime and Appellant was stopped at night. The trial court was
free to credit the officer’s testimony over this unclear and ambiguous evidence.
Additionally, whether the sign was posted does not obviate the existence of a city
ordinance setting a curfew for all parks. The city ordinance sets a curfew at all
parks, not merely parks at which a sign is posted.
Because the officer had a reasonable suspicion that Appellant was violating
the Richardson park curfew, he was justified in detaining Appellant. Thus,
regardless of whether the interaction was an encounter or a detention, the trial
court properly denied Appellant’s motion to suppress. His first issue should, again,
be overruled.
13 STATE’S REPLY TO APPELLANT’S SECOND ISSUE (PROSECUTOR STATEMENTS IN VOIR DIRE AND CLOSING ARGUMENT)
In his second issue, Appellant complains that his Fifth and Sixth Amendment rights were violated by improper statements by the prosecutor in both voir dire and closing argument. This issue should be dismissed as multifarious because it raises complaints regarding four separate factual events and at least four distinct legal complaints. Additionally, Appellant did not preserve error on any of his complaints because he did not object and the complaints do not raise fundamental error.
Finally, Appellant should not prevail on the merits. The prosecutor’s comments during voir dire did not improperly shift the burden of proof or deprive Appellant of a jury verdict because they were merely an accurate statement of the law. The prosecutor’s closing argument did not present herself as a witness or comment on the defendant’s failure to testify because it was a summary of the evidence presented at trial. And any error in the comments was harmless.
Standard of Review:
The trial court has broad discretion over the process of selecting a jury.
Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). Accordingly, an
appellate court reviews a trial court’s rulings during voir dire for an abuse of
discretion. Id. Similarly, an appellate court reviews for an abuse of discretion
whether the trial court erred in overruling Appellant’s objection to the State’s
closing argument. See Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App.
2007). So long as the trial court’s ruling falls within the “zone of reasonable
disagreement,” the appellate court should not intercede. Powell v. State, 63 S.W.3d
435, 438 (Tex. Crim. App. 2001).
14 Relevant Facts: I. Voir dire
During voir dire, both the trial court and the prosecutor explained the
concept of proof beyond a reasonable doubt and that the State must prove every
element of the charged offense. 3 RR 14-15, 24-25. The prosecutor went on to
discuss that the State was not required to have video footage of an offense or
provide multiple witnesses to the offense. 3 RR 34. She then added:
We also don’t have to prove through a lab test that this [sub]stance has been tested and proven to be marijuana because marijuana is a substance with such a distinctive texture and smell that officers are trained to recognize it and we don’t have to actually do tests on certain things.
3 RR 34.
A prospective juror added, “marijuana has a distinguishing texture that
officers can reference and you can bring officers to testify.” 3 RR 34. The
prosecutor agreed, noting:
I want to get into what we’ll be bringing, but that’s just sort of the way we allow these cases to proceed if there is an officer and we do have marijuana that alone is enough to prove that it’s marijuana, and is that testimony saying I see it, I smelled it, I am trained to recognize it and it was X, Y or Z.
3 RR 35. Appellant did not raise an object to either of the prosecutor’s statements.
II. Closing argument
At the conclusion of its final closing argument, the State told the jury:
15 [Y]ou have all of the proof you need today.
Now I want to remind you one more time that possession doesn’t require ownership. And we talked about knowingly and intentionally, and that officer told you that it’s a usable amount of marijuana. And we know it’s this defendant, and we told you the date and told you where it happened, so you have got everything you need.
This is exactly the same thing as that child with the tape on its face. He had crumbs on his shirt.4
You know what happened that night, I know what happened and he knows what happened that night, and you see it on the video and you heard it from the officer and you have got everything you need, so we ask you to find this defendant guilty.
3 RR 140.
Argument & Authorities:
I. This issue should be dismissed as multifarious
A multifarious issue is one that embraces more than one specific ground or
that attacks several distinct and separate rulings of the court. Sterling v. State, 800
S.W.2d 513, 521 (Tex. Crim. App. 1990); Edwards v. State, No. 05-09-01496-CR,
2011 WL 3795696, at *6 (Tex. App.—Dallas Aug. 29, 2011, no pet.) (not
designated for publication). A multifarious point presents nothing for review and
may be summarily dismissed. Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim.
App. 1996); Edwards, 2011 WL 3795696, at *6. In Edwards, this Court 4 During voir dire, the prosecutor described circumstantial evidence as “You have the cake with the big piece missing, you’ve got crumbs maybe leading up to your kids feet, and you’ve got this. That’s circumstantial evidence and you can consider that, and sometimes that’s really helpful.” 3 RR 37
16 particularly noted that an issue should be dismissed as multifarious where it
attacked separate rulings of the trial court that “related to different objections and
requests made by different parties, which are subject to different standards of
review, harm analyses, and questions regarding waiver.” Edwards, 2011 WL
3795696, at *6.
Here, Appellant’s second issue raises a multitude of arguments, divided by
Appellant into five subsections that each address multiple concerns. Appellant’s
Brief at 14-28. His complaint addresses four separate statements at trial, two in
voir dire and two in closing arguments. He also identifies at least four distinct legal
claims—relating to the right to a jury determination of guilt, the right to proof
beyond a reasonable doubt, the right to remain silent, and the right to confront
witnesses. Additionally, as none of the complained-of occurrences received an
objection at trial, each requires a separate analysis in response to Appellant’s claim
they amount to fundamental error. As in Edwards, Appellant’s complaints are so
disjointed and touching on such a wide variety of factual and legal issues that they
do not preserve any point for review. Accordingly, Appellant’s second issue should
be summarily dismissed as multifarious.
II. Appellant did not preserve his complaints for review
To preserve error on the improper admission of evidence, the opponent must
make a timely, specific objection at the earliest possible opportunity. Tex. R. App.
17 P. 33.1(a)(1); Saldano v. State, 70 S.W.3d 873, 886-87 (Tex. Crim. App. 2002).
The purpose of requiring an objection is to give the trial court the opportunity to
rule on the issue, as well as to give the proponent of the evidence an opportunity to
correct the alleged error. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App.
2004). Without proper preservation, even constitutional errors may be waived.
Saldano, 70 S.W.3d at 889. Here, Appellant raised no objection to any of the
complained-of statements. 3 RR 34-35, 140. Accordingly, he did not preserve error
for review.
Appellant argues that the issue raises fundamental error and need not be
preserved for this court to review. Appellant’s Brief at 17-19. Fundamental errors
include only violations of waivable-only rights and denials of “absolute systemic
requirements.” Saldano, 70 S.W.3d at 888. Waivable-only rights include the rights
to assistance of counsel and a trial by jury; systemic requirements include
jurisdiction of the person and subject-matter. Id. But none of Appellant’s
complaints arise to the level of fundamental error. Courts have long recognized
that complaints about a prosecutor’s comments in voir dire require an objection to
preserve error. See, e.g., Draughon v. State, 831 S.W.2d 331, 336 (Tex. Crim. App.
1992); Espinosa v. State, 194 S.W.3d 703, 708 (Tex. App.—Houston [14th Dist.]
2006, no pet.); Cruz v. State, 877 S.W.2d 863, 868 (Tex. App.—Beaumont 1994,
pet. ref’d). Although Appellant argues the instant claim should be considered
18 fundamental because he argues that State misstated the burden of proof, this Court
has previously held that even such a complaint is subject to the rules of error
preservation. Landrum v. State, No. 05-90-01610-CR, 1993 WL 147034, at *2
(Tex. App.—Dallas May 5, 1993, no pet.) (not designated for publication).
Appellant’s voir dire complaints were not fundamental error and required an
objection to preserve.
Similarly, Appellant’s closing argument complaints were not fundamental
error. Again, courts have generally required preservation for complaints of a
prosecutor’s closing argument. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim.
App. 2002); Padrino v. State, No. 05-05-01596-CR, 2007 WL 241159, at *7 (Tex.
App.—Dallas Jan. 30, 2007, no pet.) (not designated for publication). Indeed, in
Padrino, this Court found a complaint that the prosecutor’s argument injected her
personal opinion about the case to require preservation. Padrino, 2007 WL
241159, at *7. And the courts have long applied traditional preservation
requirements to comments on the defendant’s silence. See, e.g., Smith v. State, 721
S.W.2d 844, 855 (Tex. Crim. App. 1986); Salazar v. State, 131 S.W.3d 210, 214-
15 (Tex. App.—Fort Worth 2004, pet. ref’d); Kimbrell v. State, No. 05-00-00156-
CR, 2001 WL 461531, at *2 & n.2 (Tex. App.—Dallas May 3, 2001, pet. ref’d)
(not designated for publication). Thus, Appellant’s closing arguments complaints
likewise were not fundamental error.
19 Because Appellant did not object to any of the complained-of statements and
such statements did not encompass fundamental error, he failed to preserve the
issue for review. Appellant’s second issue should be overruled.
III. The prosecutor’s comments during voir dire were not improper
Even if Appellant’s complaints are considered, Appellant is nonetheless not
entitled to relief. First, he raises two complaints regarding the prosecutor’s
statements during voir dire. He argues that the prosecutor’s statements “We also
don’t have to prove through a lab test that this [sub]stance has been tested and
proven to be marijuana” (3 RR 34) and “that’s just sort of the way we allow these
cases to proceed if there is an officer and we do have marijuana that alone is
enough to prove that it’s marijuana” (3 RR 35) were improper because it misstated
the State’s burden of proof and allowed the jury to believe that the State did not
have to prove the substance Appellant possessed was, in fact, marijuana.
Appellant’s Brief at 21-23.
But the prosecutor’s comments were an accurate statement of the law. The
prosecutor never said that the State was not required to prove that the substance
Appellant possessed was marijuana. Rather, she stated that no “lab test” was
needed and an officer’s testimony alone could prove the substance was marijuana.
3 RR 34-35. This has long been an accurate statement of the law. See, e.g., Miller
v. State, 330 S.W.2d 466, 468 (Tex. Crim. App. 1959). Indeed, the Court of
20 Criminal Appeals has held that, “[u]nlike other drugs that may require chemical
analysis, marihuana has a distinct appearance and odor that are familiar and easily
recognizable to anyone who has encountered it.” Osbourn v. State, 92 S.W.3d 531,
537-38 (Tex. Crim. App. 2002). The prosecutor’s accurate statements of the law
did not misstate the burden of proof and did not prevent the jury from making a
fair determination of Appellant’s guilt.
Further, any error was harmless. Earlier in voir dire, the trial court
extensively discussed the burden of proof and informed the jury that “the burden of
proof is always on the State” and “the State must prove each and every element of
the offense charged.” 3 RR 14-15. Likewise, the prosecutor explained that the State
was required to prove seven elements in the case, including that the substance
possessed was marijuana. 3 RR 24-25. The court’s charge instructed the jury in the
elements of the case, including that the substance possessed was marijuana, and it
informed the jury that “the burden of proof is upon the State throughout the trial.”
CR 45-46. Most importantly, whether the substance was marijuana was never a
contested issue throughout the trial. Rather, Appellant focused on whether the
search was legal and whether he personally possessed the marijuana because it was
in the center console of the car rather than on his person. Based on the totality of
the evidence and the state of the law explained to the jury throughout the trial, any
error in the complained-of statements did not influence the jury.
21 IV. The prosecutor’s closing argument was not improper
Finally, the prosecutor’s closing argument was not improper. Four generally
accepted areas of jury argument are: (1) summary of the evidence; (2) reasonable
deductions from the evidence; (3) response to opposing counsel’s argument; and
(4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim.
App. 2000). Appellant argues that the prosecutor’s phrase “I know what happened”
suggested that she had conducted her own independent investigation into the case
and the phrase “he knows what happened” was a comment on Appellant’s failure
to testify. Appellant’s Brief at 23-27. But the prosecutor’s argument must be
reviewed within the context of the entire argument, not isolated phrases plucked
out of context. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988) (“In
examining challenges to jury argument, this Court considers the remark in the
context in which it appears.”).
Reviewed in context, the State’s argument was simply a summation of the
evidence. The prosecutor reviewed the evidence and discussed the elements of the
case in turn, including reminding the jury about the definition of possession, how it
could determine Appellant’s mental state, and the officer’s testimony that the
substance was a usable quantity of marijuana. 3 RR 34. The conclusion “You know
what happened that night, I know what happened and he knows what happened
that night” was simply a rhetorical device to summarize the evidence and remark
22 that a guilty verdict was the obvious conclusion. Indeed, the prosecutor
immediately followed these comments with “and you see it on the video and you
heard it from the officer and you have got everything you need.” 3 RR 140. This
reference again to the evidence, including both testimony and the video, reinforced
that the prosecutor was simply summarizing the evidence the jury had heard in the
case.
In a similar case, the Fourteenth Court of Appeals held that a similar
statement of “You know it and I know it” was a simple summary of the evidence
rather than the prosecutor indicating he had conducted his own investigation into
the case. Milburn v. State, 973 S.W.2d 337, 341-42 (Tex. App.—Houston [14th
Dist.] 1998, rev’d on other grounds, 3 S.W.3d 918 (Tex. Crim. App. 1999). It
noted that the prosecutor “never inferred to the jury that it should rely on his
special expertise as a prosecutor, but instead, on common sense and on reasonable
deductions from the evidence presented at trial.” Id. Similarly, the prosecutor’s
statement here of “I know what happened” was a reference to the evidence
presented at trial and did not in any way indicate that the prosecutor had conducted
a personal investigation.
Nor would the jury necessarily conclude that the prosecutor’s statement in
context was a reference to the defendant’s failure to testify. To determine whether
a prosecutor’s argument constitutes a comment on the failure of a defendant to
23 testify, the complained-of language is analyzed within the context in which it was
made and must be viewed from the jury’s standpoint. Bustamante v. State, 48
S.W.3d 761, 765 (Tex. Crim. App. 2001). The test is whether the complained-of
language was manifestly intended or of such a character that the jury would
necessarily and naturally take it as a comment on the defendant’s failure to testify.
Id. It is not enough that the language might be construed as an indirect or implied
allusion to a defendant’s failure to testify; the implication that the offending
language made reference to the failure to testify must be a necessary one. Patrick
v. State, 906 S.W.2d 481, 490-91 (Tex. Crim. App. 1995). Again, the prosecutor’s
comment was simply summarizing the evidence and would not necessarily be
considered by a jury as a comment on Appellant’s failure to testify.
Appellant argues the case is similar to Trevino v. State, where the Austin
Court of Appeals determined that the prosecutor’s argument “Two people were
there that night that know what happened, Adolph Trevino and [the victim]” was a
comment on the defendant’s failure to testify. Appellant’s Brief at 26-27, citing
Trevino v. State, 979 S.W.2d 78, 79-80 (Tex. App.—Austin 1998, pet. ref’d). But
the cases are not similar because the prosecutor here never identified Appellant as
the only person who knew what happened. Rather, in the middle of summarizing
all the evidence and explicitly referring to the video of the event, the prosecutor
stated broadly that everyone in the courtroom—the jury, the prosecutor, and the
24 defendant—knew what happened. 3 RR 140. This would be understood by any
reasonable jury as a simple rhetorical device indicating that the conclusion was
obvious from the evidence. The statement did not comment on Appellant’s failure
to testify, and accordingly it was not improper.
Finally, even if the closing argument was improper, it was nonetheless
harmless. The complained-of statement was a minor portion of the State’s
argument and at best mildly improper. Moreover, the statement was embedded in a
valid argument properly summarizing the evidence before the jury. See Hawkins v.
State, 135 S.W.3d 72, 83 & n.68 (Tex. Crim. App. 2004) (finding error harmless in
part where impermissible comment was mild and the “main point of the comment
was a valid one.”). Any error would not have affected the jury, and accordingly it
was harmless.
Appellant did not preserve his complaints, and the complained-of statements
in both voir dire and closing argument were not in error. Appellant’s second issue
should be overruled.
25 PRAYER
Appellant’s trial was without prejudicial error. The State prays that
Appellant’s conviction and sentence be affirmed.
Respectfully submitted,
GREG WILLIS Criminal District Attorney Collin County, Texas
JOHN R. ROLATER, JR. Assistant Criminal District Attorney Chief of the Appellate Division
/s/ Andrea L. Westerfeld ANDREA L. WESTERFELD Assistant Criminal District Attorney 2100 Bloomdale Rd., Suite 200 McKinney, TX 75071 (972) 548-4323 FAX (214) 491-4860 State Bar No. 24042143 awesterfeld@co.collin.tx.us
26 CERTIFICATE OF SERVICE
A true copy of the State’s brief has been electronically served on counsel for
Appellant, Kyle Therrian, and a courtesy copy sent to
k.therrian@rosenthalwadas.com on this, the 29th day of December, 2014.
/s/ Andrea L. Westerfeld Andrea L. Westerfeld
CERTIFICATE OF COMPLIANCE
This brief complies with the word limitations in Texas Rule of Appellate
Procedure 9.4(i)(2). In reliance on the word count of the computer program used to
prepare this brief, the undersigned attorney certifies that this brief contains 5,962
words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).
/s/ Andrea L. Westerfeld Andrea L. Westerfeld
Richardson City Parks Ordinance Code of Ordinances, City of Richardson, Texas, Sec. 15-61(18)
28 12/1912014 Richardson, TX Code of Ordinances
Sec.15-61. ·Unlawful acts. Within the limits of any city park, it shall be unlawful for any person to do any of the acts hereinafter specified, except as may be otherwise provided:
(1} To hitch, fasten, lead, drive, or let loose any animal, reptile, or fowl of any kind, provided that this shall not apply to dogs when led by a cord or chain, not more than six feet long. (2} To ride or drive any horse or other animal, except In designated areas. (3} To ride, drive, or go on any drive or street in any park at a speed greater than the posted speed limits, upon any bicycle, motorcycle, automobile, or any other vehicle whatsoever, or to ride or drive any such motorcycle, automobile, or other motorized vehicle upon any sidewalk, hike, or jogging trail or walk, except in designated areas. (4) To carry or discharge any firearms, firecrackers, rockets, torpedoes, or any other fireworks, airguns, BB guns, bows and arrows, slingshots, paint-ball guns, or hit golf balls except In designated areas. (5) To damage, move, alter, cut, break, injure, deface, or disturb any tree, shrub, plant, rock, building, cage, pen, monument, fence, bench, equipment, or other structure, apparatus or property, or to pluck, pull up, cut, take, or remove any shrub, bush, plant or flower, or to mark or write upon, paint, or deface in any manner, any building, monument, fence, bench, equipment or other structure. (6) To cut or remove any wood, turf, grass, soil, rock, sand, gravel, or fertilizer. m To swim, bathe, wade In, or pollute the water of any fountain, pond, lake, or stream. (8) To make or kindle a fire except in picnic stoves, braziers, fire pits, or designated areas provided for that purpose. (9) To wash dishes or to empty salt water or other waste liquids elsewhere than In sinks provided for such purposes. (1 0) To place, abandon, or leave garbage, cans, bottles, papers, or other refuse in any park except in proper waste receptacles. (11) To participate or engage in any activity In any park area when such activity will create a danger to the public or may be considered a public nuisance. (12) To camp overnight. (13} To possess or consume any alcoholic beverage. (14) To disturb in any manner any picnic, meeting, service, concert, exercise, or exhibition. (15) To distribute, post, place, or erect any advertising, handbill, circular, bill, notice, paper, or other advertising device. (16) To sell or offer for sale any food, drinks, confections, merchandise, or services. (17) To practice, carry on, conduct, or solicit for any trade, occupation, business, or profession or to circulate any petition of whatsoever kind or character. (18) To remain, stay, or loiter in any park between the hours of 1 0:30 p.m. and 5:00 a.m. of the following day, or remain, stay, or loiter in any park except during the posted hours of operation, If posted as open other than 5:00 a.m. to 10:30 p.m. of the same day.
abcutbfank 112 1211A"JD14 Rfchardscn. TX Code of Ordinances (19) For any person over the age of six years to use the restrooms and washrooms designated for the opposite sex. (20) To place or dump any trash, refuse, solid waste, grass clippings, leaves, or other objectionable or unsightly matter In any park. (21) To allow an animal to defecate In the park without immediate removal· and disposal of such feces in proper waste receptacles. (22) Seining minnows or fish from the creeks, ponds, and lakes in any park. (23) To abandon, place, remove, or injure any animal including any living creature, domestic or wild, including but not limited to dogs, cats, cows, horses, birds, fish, mammals, reptiles, fowls, and livestock, except fishing In designated areas. Fishing by adults Is restricted to catch and release. (24) To use or operate any motorboat, boat, or watercraft on any creek, pond, lake, or water within any park. . (25) To conduct any actlvlcy which places a person In or on any creek, pond, lake, or water within the park. (26) To use or operate any model airplane, boat, car, or other motorized model device, Including radio-controlled devices; or helicopter, parasail, hang glider, or hot air balloon. Nonmotorized model sailboats are allowed. (27) Use of mechanical loudspeakers or amplified music, sound, or voices. (28) To conduct or participate in any tournament, camp, or organized sporting activity which has not been specifically authorized by the director or which conflicts with a scheduled activity or event authorized by the director. (29) To operate a motor-assisted scooter, as defined by V.T.CA, Transportation Code, § 551.301, as amended, any where within the limits of any park except on sidewalks, and on paths set aside for the exclusive operation of bicycles. (Code 1966, § 1~5(AJ; Ord. No. 3235-A, § 1, 7-12-99; Ord. No. 3465, § 2, 5-2.UU)