Zunker, Scott Alan v. State

• Court: Court of Appeals of Texas
• Decided: January 13, 2005
• Docket: 01-02-00529-CR
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00529-CR

SCOTT ALAN ZUNKER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 361st District Court

Brazos County, Texas

Trial Court Cause No. 28,688-361

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DISSENTING OPINION ON MOTION FOR REHEARING

          Because the appropriate standard for determining the harm of the State’s improper punishment argument requires that this case be reversed and remanded for a new punishment hearing, I respectfully dissent.

          In his seventh point of error, appellant contends that the trial court reversibly erred in allowing the State to make the following argument:

[State]:Imagine the embarrassment, the humiliation that [the complainant] had to go through. Every time you think about the excuses the Defendants offered, think about [her], what she’s gone through, what her parents are going through, what her dad is thinking knowing that his little girl was violated in the worst way.

[Appellant]: Judge, I’ll object. There is no evidence as to what her parents were thinking as to even their presence [sic] here in the courtroom.

          [Trial Court]:         Overruled.

(Emphasis added.) As conceded by the State during oral argument in this Court, there is, in fact, no evidence in the record that the complainant’s parents were even living at the time of the offense or aware that the complainant had been sexually assaulted.

          The law provides for, and presumes, a fair trial free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). It is well-settled that a prosecutor cannot use closing argument to place matters before the jury that are outside the record and prejudicial to the accused. Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986); Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Arguments referencing matters that are not in evidence and may not be inferred from the evidence are usually “designed to arouse the passion and prejudices of the jury and as such are highly inappropriate.” Thompson, 89 S.W.3d at 850 (quoting Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990)).

          Here, the State invited the jury, “every time” it considered the defendants’ punishment arguments, to instead focus on what her parents were “going through” and, in particular, “what her dad is thinking knowing that his little girl was violated in the worst way.” (Emphasis added.) It is readily apparent that the State, in an effort to completely nullify the defendants’ punishment arguments, sought to inflame the “passions and prejudices of the jury,” especially those members of the jury who were parents. This highly prejudicial argument was egregiously inappropriate, and the trial court gravely erred in overruling appellant’s objection, an objection which so obviously should have been sustained.

          Appellant concedes that the trial court’s error in overruling his objection was non-constitutional and that the appropriate harm standard of review provides that such an error “that does not affect substantial rights must be disregarded.” Tex. R. App. P. 44.2(b). In Hawkins v. State, the Court of Criminal Appeals has recently held that determining harm under this standard concerning improper punishment argument in non-capital cases requires balancing three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

          In regard to the first factor, the State’s argument, asking the jurors to substitute their thoughts “about . . . what her parents are going through, what her dad is thinking knowing that his little girl was violated in the worst way” in place of appellant’s punishment arguments, when there is absolutely no evidence whatsoever that the complainant’s parents were even aware of the sexual assault, was a flagrant attempt to arouse the passion and prejudices of the jury. The degree of such misconduct is not “minimal,” and, as noted above, such an argument, “designed to arouse the passion and prejudices of the jury,” is “highly inappropriate.” Thompson, 89 S.W.3d at 850 (quoting Borjan, 787 S.W.2d at 57).

          The trial court, in regard to the second factor, made no attempt at all to correct the State’s misconduct. The bottom line is that it simply failed to sustain appellant’s proper objection to an obviously improper argument. Moreover, the trial court’s failure to sustain appellant’s objection to the argument borders on constitutional error. See Thompson, 89 S.W.3d 843, 852 (noting that State’s argument “by urging the jury to consider matters not before them, and while effectively acknowledging that to do so was a violation of their solemn oath as jurors . . . violated the Due Process Clause of the Fourteenth Amendment and implicated the Confrontation Clause of the Sixth Amendment.”).

          Finally, in regard to the third factor, appellant faced the widest possible range of punishment provided for an offense in the Texas Penal Code: confinement in prison “for life or for any term of not more than 99 years or less than 5 years.” Tex. Pen. Code Ann. § 12.32 (Vernon 2003). If the jury had sentenced appellant to confinement for 10 years or less, it could have recommended to the judge that the imposition of appellant’s sentence be suspended and that appellant be placed on community supervision. Tex. Code Crim. Proc. Ann. art. 42.12 §§ 4(a), (d)(1) (Vernon Supp. 2004-2005).

          Given the wide range of possible punishment, the certainty of appellant’s sentence, confinement for 15 years, absent the State’s misconduct cannot be considered separate and apart from the severity of the State’s misconduct. As noted in the majority opinion, appellant presented numerous character witnesses who testified on his behalf in the punishment phase of trial. Although, as noted in the majority opinion, the credibility of their character testimony may have been brought into question under cross-examination, an intermediate court of appeals is not a fact-finder. More importantly, the simple fact remains that the State, regardless of the actual evidence before the jury for its consideration in assessing punishment, invited the jury, “every time” it considered appellant’s punishment arguments to simply focus on what the complainant’s parents were “going through,” and, in particular, “what her dad is thinking knowing that his little girl was violated in the worst way”—matters which were not in evidence. This was not a mere “plea for law enforcement” as discussed in Martinez v. State, 17 S.W.2d 677, 693 (Tex. Crim. App. 2000). In effect, the State argued that the jury should ignore the evidence and focus on the specific facts about the effect the offense had on the complainant’s parents. Given the severity of this misconduct and its highly prejudicial nature, it cannot be said with certainty that the jury, absent the misconduct, would likely have assessed the “same punishment” of confinement for 15 years.

          The facts of this case are truly ugly, but the severity of the offense did not relieve the trial court of its solemn obligation to “preserve, protect, and defend the Constitution and laws of the United States and of this State.” In fulfilling this duty, we, as judges, should remember the words of Justice Felix Frankfurter: “A timid judge, like a biased judge, is intrinsically a lawless judge.” Wilkerson v. McCarthy, 336 U.S. 53, 65, 69 S. Ct. 413, 419 (1949) (Frankfurter, J. concurring). I cannot conclude with “fair assurance,” as is required by the rule of law, that the trial court’s error in overruling appellant’s proper objection to the State’s highly inappropriate argument “did not influence the jury, or had but a slight effect.” See Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000). Accordingly, I would grant appellant’s motion for rehearing, sustain his seventh point of error, and reverse and remand the case for a new punishment hearing.

                                                                       Terry Jennings

                                                                        Justice

Panel consists of Justices Taft, Jennings, and Hanks.

Justice Jennings, dissenting.

Publish. Tex. R. App. P. 47.2(b).