Opinion issued October 4, 2012
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00281-CR ——————————— STEPHON CHARLES CRUISE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas Trial Court Case No. 1259792
MEMORANDUM OPINION
A jury convicted appellant, Stephon Charles Cruise, of assault by choking a
person with whom he had a dating relationship.1 The trial court assessed his
punishment at thirty-five years’ confinement. In five issues, appellant argues that: 1 See TEX. PENAL CODE ANN. § 22.01(a), (b)(2) (Vernon 2011). (1)–(2) the trial court erred in sustaining the State’s objection to his description of
the presumption of innocence in violation of the Fourteenth Amendment of the
United States Constitution and the due course of law provisions of the Texas
Constitution; (3)–(4) the trial court erred in forbidding him from advancing his
only theory for acquittal, in violation of the Sixth Amendment of the United States
Constitution and Article I, Section 10 of the Texas Constitution; and (5) the
judgment of conviction reflects the incorrect degree of offense.
We modify the judgment and affirm as modified.
Background
On April 6, 2010, Duvarra Hollins, the complainant, got into an argument
with appellant, her boyfriend, about the use of her car. Appellant drove Hollins to
her college class, and he then took the car after dropping her off. When Hollins
arrived home that night, she argued with appellant again about the use of her car.
Hollins testified that during the argument, appellant burned her temple with
a lighter. The argument continued into the bedroom where appellant grabbed
Hollins by the throat and choked her for “two to three minutes,” causing her to lose
consciousness. When Hollins regained consciousness, appellant was standing over
her and he began choking her again. Appellant stopped choking Hollins and left
the apartment when her son began knocking on the bedroom door. After appellant
2 left, taking the keys to Hollins’ car, Hollins called the police to report the assault
and her stolen car.
Hollins testified that, following her call to the police, appellant returned to
the apartment several times. He kicked her front door and yelled threats. Hollins
placed several other 9-1-1 calls regarding appellant’s threats, her stolen car, and
appellant’s appearances to kick her front door. Police eventually arrived and took
a report regarding the missing vehicle, and Officer D. King, with the family
violence unit, contacted Hollins to follow up on the reported assault. On April 9,
2010, several days after the assault, Officer King again interviewed Hollins and
took photographs of her injuries. Officer King testified that he observed injuries
on Hollins’ body consistent with her report of the assault. The trial court admitted
into evidence the photographs that Officer King had taken. Other officers testified
regarding damage to Hollins’ front door and the recovery of her car, which had
been totaled.
Hollins’ son and brother both testified regarding the events of April 6.
Hollins’ son, Steven Jackson, testified that he observed Hollins and appellant
arguing and that he became concerned when he could no longer hear them. He
went downstairs to check on Hollins, and he saw her with her hair “messed up.”
Jackson also testified that he observed appellant return to the apartment to kick the
front door and to yell at Hollins. Hollins’ brother, Deezra Watley, testified that
3 Hollins called him after appellant left and asked him to come over. Watley
testified that he was aware that appellant had gotten “rough” with Hollins and had
taken the keys to her car, and Hollins wanted Watley to stay to “make sure nothing
happened to her kids and herself.” He testified that Hollins did not tell him the
details of the assault at that time, but she “seemed terrified at the moment,” and her
kids “seemed pretty scared, too.” Watley also observed appellant kicking Hollins’
apartment door, and he stated that everyone in the apartment was “just scared.”
Following the State’s presentation of evidence, both sides rested. During
appellant’s closing argument, the following exchange occurred:
[appellant]: The presumption of innocence alone is sufficient to acquit the defendant unless the jurors are satisfied beyond a reasonable doubt of a defendant’s guilt after careful and impartial consideration of all the evidence in the case. Remember in voir dire I spoke to you briefly about the presumption of innocence and how important it is, and I told you that you must presume him to be innocent until and unless the State proves their case beyond a reasonable doubt. You must continue to give them that presumption unless you’re convinced that the State has proved their case beyond a reasonable doubt each and every elements [sic]. Otherwise, the presumption of innocence must prevail. That must be what guides you to the verdict of not guilty.
[State]: Objection, Your Honor, misstatement of the law. The presumption of innocence only exists until there is evidence presented, and there has been evidence presented in this case.
4 [Court]: Sustained.
[appellant]: What I didn’t talk to you about in your voir dire . . . is the matter of common sense when you serve on a jury . . . . I’m going to ask you to apply your common sense to what was presented to you from the witness stand and in the—the other evidence, the photos, for example, I’m going to ask you if you think—using your common sense, do you think Duvarra Hollins was actually injured so badly? Was Duvarra actually choked so severely, so strongly to the point where she was rendered unconscious?
[State]: Objection, Your Honor. That’s not the standard. Choke until he impeded her breath or blood circulation.
[Court]: All right. The jury will be guided by what they heard and the law that’s in the charge.
The trial court also read the entirety of the written charge to the jury. It states, in
pertinent part:
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case . . . . In the event that you have a reasonable doubt as to the defendant’s guilt after considering all the evidence before you, and these instructions, you will acquit him and say by your verdict “Not Guilty.”
5 The jury found appellant guilty, and the trial court assessed punishment at
thirty-five years’ confinement for the offense.
The indictment contained a paragraph alleging that appellant was guilty of a
prior assault against a family member, which would have enhanced the offense
from a third-degree felony to a second-degree felony. See TEX. PENAL CODE ANN.
§ 22.01(b-1) (Vernon 2011). However, the State abandoned that allegation prior to
appellant’s sentencing and presented no evidence regarding the alleged prior
offense of assault against a family member. The trial court’s judgment reflected
that appellant was convicted of a second-degree felony rather than a third-degree
felony.
Improper Jury Argument
A. Presumption of Innocence
In his first and second issues, appellant contends that the trial court erred in
sustaining the State’s objection to defense counsel’s characterization of the
presumption of innocence during closing arguments.
All persons are presumed to be innocent and no person may be convicted of
an offense unless each element of the offense is proved beyond a reasonable doubt.
TEX. CODE CRIM. PROC. ANN. art. 38.03 (Vernon Supp. 2011); see also Miles v.
State, 204 S.W.3d 822, 825 (Tex. Crim. App. 2006) (“[A]n accused in state court
has the right to the ‘presumption of innocence,’ i.e., the right to be free from
6 criminal conviction unless the State can prove his guilt beyond a reasonable doubt
by probative evidence adduced at trial.”) (citing Taylor v. Kentucky, 436 U.S. 478,
483 & n.12, 98 S. Ct. 1930, 1934 & n.12 (1978)). “When a jury is told of the
presumption, it is told, in effect, to judge an accused’s guilt or innocence solely on
the basis of the evidence adduced at trial and not on the basis of suspicions that
may arise from the fact of his arrest, indictment, or custody.” Miles, 204 S.W.3d at
825. The burden of proof “rests entirely upon the State” and “that burden remains
upon the State throughout the trial until the jury reaches a verdict.” Id. (quoting
Miles v. State, 154 S.W.3d 679, 683 (Tex. App.—Houston [14th Dist.] 2004)
(Hudson, J., concurring), aff’d, 204 S.W.3d 822 (Tex. Crim. App. 2006)); see also
McGrew v. State, 143 S.W.2d 946, 946 (Tex. Crim. App. 1940) (stating defendant
is presumed innocent “until the jury has concluded his guilt from the facts of the
case”).
Error normally occurs when a trial court makes a mistake. Hawkins v. State,
135 S.W.3d 72, 76 (Tex. Crim. App. 2004). When a trial court commits error, a
harm analysis is appropriate. See id. The Court of Criminal Appeals has
previously held that a trial court’s improper decision to sustain an objection to a
correct statement of the presumption of innocence during closing argument is
constitutional error that must be reviewed to determine whether the error was
harmless beyond a reasonable doubt. Miles, 204 S.W.3d at 826–27. Texas Rule of
7 Appellate Procedure 44.2(a) requires reversal in cases in which constitutional error
is committed “unless the court determines beyond a reasonable doubt that the error
did not contribute to the conviction or punishment.” Id. at 826 (quoting TEX. R.
APP. P. 44.2(a)).
If there is a reasonable likelihood that the error materially affected the jury’s
deliberations, then the error was not harmless beyond a reasonable doubt.
Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000); see also
Satterwhite v. Texas, 486 U.S. 249, 256, 108 S. Ct. 1792, 1797 (1988) (“[I]f the
prosecution can prove beyond a reasonable doubt that a constitutional error did not
contribute to the verdict, the error is harmless and the verdict may stand.”). The
court should calculate as much as possible the probable impact of the error on the
jury in light of the existence of other evidence. Wesbrook, 29 S.W.3d at 119; Miles
v. State, 918 S.W.2d 511, 517 (Tex. Crim. App. 1996). The presence of
overwhelming evidence supporting the finding in question can be a factor in the
evaluation of harmless error. Wesbrook, 29 S.W.3d at 119; Moreno v. State, 858
S.W.2d 453, 466 (Tex. Crim. App. 1993). In conducting such a review, we must
consider the “totality of the circumstances” by examining the record as a whole.
See Miles, 204 S.W.3d at 828.
We presume that the jury followed the instructions in the jury charge.
Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003); Colburn v. State,
8 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). This presumption can be rebutted,
but there must be some evidence to show the jury acted contrary to the jury charge
instructions. See Colburn, 966 S.W.2d at 520.
In Miles, the Court of Criminal Appeals addressed a similar situation.
During Miles’ closing argument, the State objected on two occasions to Miles’
correct statements regarding the presumption of innocence, and, on one occasion, it
stated that the presumption of innocence applies “before the trial starts.” Miles,
204 S.W.3d at 823–24. The trial court sustained both of the State’s objections. Id.
The Court of Criminal Appeals held that the State “was wrong in objecting, during
closing argument at the guilt stage of appellant’s trial, to her still being ‘presumed
innocent’ at that point, and the trial court committed constitutional error when it
sustained the State’s objection.” Id. at 826.
The court then conducted a harmless error analysis and concluded that the
error was harmless beyond a reasonable doubt. Id. at 827. The court cited the
following factors: “the exchange in question between the parties and the trial court
was brief and not without ambiguity, with the trial court saying no more than
‘sustained’ (twice) and ‘let’s move on’”; the State “never denied that it had the
burden to prove appellant’s guilt beyond a reasonable doubt”; the written charge
“included an accurate and thorough explanation of the presumption of innocence,”
and there was no evidence that the jury did not follow the written instructions; and
9 finally, “the State’s evidentiary case against appellant was strong and her defense
was relatively weak.” Id. at 827–28.
Here, as in Miles, the State admits, and we agree, that the trial court
committed a constitutional error when it sustained the State’s objection that argued
the presumption of innocence only exists until evidence is presented. See id. at
826. We must now determine whether the error committed requires reversal. See
TEX. R. APP. P. 44.2(a) (providing that unless we can determine beyond reasonable
doubt that error did not contribute to conviction or punishment of defendant,
judgment must be reversed).
After examining the entire record, we conclude that the error was harmless
beyond a reasonable doubt. As in Miles, the error occurred in a single, brief
exchange between the parties and the trial court, in which the trial court said no
more than “sustained” in response to the State’s objection. See Miles, 204 S.W.3d
at 827 (“Given the context, we doubt that the jury placed much significance on the
exchange.”). Furthermore, just moments later, following the State’s objection to
appellant’s description of the standard for choking, the trial court instructed the
jury to be guided by “the law that’s in the charge.”
Just as in Miles, the State never denied its burden to prove appellant’s guilt
beyond a reasonable doubt, and appellant was allowed to make that argument
during his closing statement without objection. See id. The written jury charge,
10 which the trial court had previously read aloud, contained a “thorough and correct”
statement of the presumption of innocence and instructed the jury to acquit if it had
reasonable doubt after considering all of the evidence presented. Although
appellant argues that “the error here was imputed to the charge itself” because
“defense counsel read directly from the charge [when] the State made an erroneous
statement, which the trial court endorsed,” there is no evidence that the jurors
failed to follow the written instructions in the jury charge, so we must presume that
they did. See id.; Colburn, 966 S.W.2d at 520.
Finally, the evidence against appellant was strong. Contrary to appellant’s
argument that the evidence was essentially a “swearing match” between appellant
and Hollins, the State presented the testimony of multiple witnesses and
photographs corroborating Hollins’ testimony about the assault. In addition to
Hollins’ own testimony, her son testified that he observed appellant and Hollins
arguing and that he saw Hollins’ hair “messed up.” Hollins’ son and brother both
testified that they observed appellant return to Hollins’ apartment and kick the
door. The responding officer testified that he observed damage to Hollins’ front
door, and Officer King testified that, three days after the assault, he observed
Hollins’ injuries, which were consistent with her reported assault. The
photographs taken by Officer King were admitted for the jury to consider. See
11 Miles, 204 S.W.3d at 828 (“The State’s evidentiary case against appellant was
strong and her defense relatively weak.”).
Given the totality of the circumstances, we hold that, beyond a reasonable
doubt, the trial court’s error did not materially affect the jury’s deliberations to
appellant’s detriment and, thus, did not contribute to the verdict obtained. See id.
We overrule appellant’s first and second issues.
B. Right to Counsel
In his third and fourth issues, appellant contends that the trial court’s ruling
sustaining the State’s objection on the presumption of innocence violated his right
to effective assistance of counsel under the Sixth Amendment of the United States
Constitution and Article I, Section 10, of the Texas Constitution.
Permissible jury argument generally falls into one of four areas:
(1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an
answer to the argument of opposing counsel; or (4) a plea for law enforcement.
David v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010). Prohibiting counsel
from making an argument that he was entitled to make constitutes denial of the
defendant’s right to counsel. See id. at 825; see also Riles v. State, 595 S.W.2d
858, 861 (Tex. Crim. App. 1980) (en banc) (holding that improper denial of jury
argument can constitute denial of right to counsel). A defendant has the legal right
to argue any theory supported by the evidence. Thomas v. State, 336 S.W.3d 703,
12 713 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Lemos v. State, 130 S.W.3d
888, 892 (Tex. App.—El Paso 2004, no pet.) (citing Brown v. State, 955 S.W.2d
276, 279 (Tex. Crim. App. 1997)).
Denial of the right to counsel is an error of constitutional magnitude. See
U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see also Lemos, 130 S.W.3d at
892–93 (“A criminal defendant’s constitutional rights to counsel and to a jury trial
encompass a right to have his theory of the case argued vigorously to the jury.”).
Because the error is of constitutional magnitude we must evaluate harm under Rule
44.2(a), which requires us to reverse unless we determine beyond a reasonable
doubt that the error did not contribute to appellant’s conviction. See TEX. R. APP.
P. 44.2(a).
Appellant contends that he was deprived the right of counsel when the trial
court “[prohibited] the defense from advancing its only theory for acquittal.” We
have already held that the trial court’s ruling sustaining the State’s objection was
erroneous and concluded that the error was harmless beyond a reasonable doubt as
it pertains to appellant’s presumption of innocence.
Appellant contends that he was harmed when his defense counsel was
forbidden from advancing his only argument. However, the record shows that
defense counsel continued his closing argument after the objection on the
presumption of innocence. During this time, defense counsel raised
13 inconsistencies in the testimony, attacked the credibility of witnesses, and argued
that the State failed to establish appellant’s guilt beyond a reasonable doubt. See
id. Therefore, appellant was not denied his one and only argument.
Furthermore, just moments after the trial court improperly sustained the
State’s objection, the trial court instructed the jury to be guided by “the law that’s
in the charge.” The written jury charge, which the trial court had previously read
aloud, contained a thorough and correct statement of the presumption of innocence
and instructed the jury to acquit if it had reasonable doubt after considering all of
the evidence presented. Therefore, the trial court submitted the argument to the
jury through the jury charge. In the absence of any evidence that the jurors did not
do so, we must assume that the jurors, in the course of their deliberations, utilized
the law in the jury charge. See Colburn, 966 S.W.2d at 520.
We conclude that the trial court did not deprive appellant of the right to
counsel by prohibiting him from advancing his only theory for acquittal.
Moreover, to the extent that the trial court erred by sustaining the State’s
objection to appellant’s proper statement regarding the presumption of innocence,
the record shows that the error was harmless with respect to appellant’s ability to
make that argument. As we have already discussed, the purpose of instructing the
jury about the presumption of innocence is to tell the jury “to judge an accused’s
guilt or innocence solely on the basis of the evidence adduced at trial and not on
14 the basis of suspicions that may arise from the fact of his arrest, indictment, or
custody” and to emphasize the fact that the accused has “the right to be free from
criminal conviction unless the State can prove his guilt beyond a reasonable doubt
by probative evidence adduced at trial.” See Miles, 204 S.W.3d at 825. The State
never denied its burden to prove appellant’s guilt beyond a reasonable doubt, and
appellant was allowed to make that argument during his closing statement without
objection. As we have previously held upon reviewing the entire record, the
evidence against appellant was strong.
Thus, the error resulted from a short exchange which ended with the trial
court referring the jury to the accurate statement of law in the jury charge, and
neither the trial court nor the State emphasized the error. Given the totality of the
circumstances, including the proper and thorough jury charge and the other
arguments appellant was permitted to advance during his closing argument, we
conclude that the jurors probably did not place much weight on this single error.
See Wesbrook, 29 S.W.3d at 119 (holding that harmless error analysis should not
focus on propriety of outcome of trial, but on probable impact of error on jury in
light of existence of other evidence).
Therefore, we hold that any error in the trial court’s not allowing appellant
to make his argument concerning the presumption of innocence was harmless
beyond a reasonable doubt.
15 We overrule appellant’s third and fourth issues.
Reformation of Judgment
In his fifth issue, appellant contends that the judgment reflects the incorrect
degree of offense. An appellate court has the power to correct and reform a trial
court judgment to make the record speak the truth when it has the necessary data
and information to do so. Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—
Houston [1st Dist.] 2001, no pet.); see TEX. R. APP. P. 43.2(b) (permitting court of
appeals to render judgment modifying trial court judgment and affirming as
modified). The degree of felony for assault of a family member depends on
evidence shown at trial of a prior conviction of assault against a family member.
See TEX. PENAL CODE ANN. § 22.01(b–1).
The State admits, and we agree, that the judgment of conviction reflects the
wrong degree of offense. The judgment reflects that appellant was convicted of a
second-degree felony of assault of a family member by choking. Although the
indictment contained a paragraph alleging a previous conviction for assault against
a family member, the State abandoned that enhancement and did not present
evidence of it at trial. Because appellant’s prior family assault conviction was not
admitted into evidence, appellant’s judgment should reflect the conviction of a
third-degree felony. See id. § 22.01(b)(2), (b–1). The State presented evidence of
appellant’s prior felony convictions of burglary and attempted burglary of a
16 habitation. Appellant was thus sentenced as a habitual offender, so the
modification of the judgment has no effect on the punishment assessed. See id.
§ 12.42(d) (Vernon Supp. 2012).
We sustain appellant’s fifth issue.
Conclusion
We modify the judgment to reflect appellant’s conviction of a third-degree
offense, and we affirm the judgment as modified.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).