Raymond Sambow Vargas v. State ( 2005 )

11th Court of Appeals

Eastland, Texas

Opinion

Raymond Sambow Vargas

            Appellant

Vs.                  No. 11-04-00143-CR -- Appeal from Palo Pinto County

State of Texas

            Appellee

            Raymond Sambow Vargas, appellant, was convicted of unauthorized use of a motor vehicle and sentenced to 2 years confinement and a $2,500 fine. In appellant’s first point of error, he claims that the trial court’s comment during voir dire was so prejudicial that he was deprived of a fair and impartial trial. In appellant’s second point of error, he claims that the trial court erred in failing to grant his objection to the prejudicial, improper, and harmful jury argument of the prosecutor. We affirm.

The Court’s Instructions

            At the beginning of jury voir dire, the trial court gave the following instruction:

            The defendant, in a criminal case, has the absolute right to not testify. The defendant is not required to prove himself or herself innocent. The State has the burden of proving he or she is guilty. If a person on trial elects to exercise their right to not testify, then you are instructed, as the law requires, that that cannot be considered as a circumstance against the defendant for any purpose whatsoever. It is a valuable right.

            There are many, many reasons why someone might elect not to testify that have absolutely nothing to do with whether that person is guilty or not guilty. And so it wouldn’t be a very valuable right after all if, when you exercise it, somebody could hold that against you.

            I’ve had many cases as a trial lawyer and as a judge where jurors seated, such as you are seated, might honestly say, “Well, Judge, if I were accused of something, I would certainly want to get up there and tell my side of the story.” And it’s okay to feel that way. I think that’s how I feel about it. But your role, as a juror, is to follow the law and the instructions given to you by the Court. And it is simply a matter of law that you cannot consider that or hold it against the defendant for any reason whatsoever.

            I have absolutely no idea whether the defendant will testify or not, that is up to him and his lawyer.

            Is there anyone who cannot follow that instruction -- no matter what your personal opinion is, is there anyone who cannot follow the instruction that if the defendant elects not to testify, then you cannot consider that as a circumstance against him for any reason whatsoever? Anybody have a problem with that, raise your hand.

There was no response from the panel. Analysis

            In appellant’s first point of error, he asserts that the trial court committed reversible error when it made the foregoing statement to the venire panel. Appellant’s counsel did not object to the trial court’s comments. Appellant’s counsel had ample opportunity to voir dire the panel after the comments were made.

            Generally, to preserve a complaint for appellate review, counsel must object or otherwise bring the complaint to the trial court’s attention. The trial court should have an opportunity to correct the error. TEX.R.APP.P. 33.1; Sharpe v. State, 648 S.W.2d 705, 706 (Tex.Cr.App.1983). Although in some cases this court is authorized to take “notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court,” such is not the case here. TEX.R.EVID. 103(d). Even if it was an erroneous instruction, the error was not so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection from waiver. Blue v. State, 41 S.W.3d 129, 131 (Tex.Cr.App.2000).

            Even if appellant had not waived his complaint, the trial court did not err. At the outset of voir dire, trial courts often mention general principles of law including a person’s right not to testify. See Williams v. State, 719 S.W.2d 573 (Tex.Cr.App.1986). The conduct of the voir dire examination rests largely within the sound discretion of the trial court. See Moore v. State, 542 S.W.2d 664, 668 (Tex.Cr.App.1976). The trial court stated that it did not know whether the defendant would testify but that a failure to testify should not be held against a defendant. We overrule appellant’s first point of error.

            Appellant’s second point of error is that the trial court erred in failing to grant appellant’s objection to the State’s allegedly prejudicial, improper, and harmful jury argument. In its closing argument, the State told the jury:

I’ll remind you of one of the things I talked about during Voir Dire, and that was that the defense has equal subpoena power in this case. You know, they have the right to bring whatever witness they want to bring down here, issue a subpoena for them, have them come down here and straighten something out for you if there’s something that needs to be straightened out.

            Appellant argues that, when the State made the foregoing statement, it conveyed to the jury that the defendant could have testified and “straightened things out.” Appellant thus argues that the foregoing statement was improper jury argument.

            Proper jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Cr.App.2000); McKay v. State, 707 S.W.2d 23, 36 (Tex.Cr.App.1985). Error occurs when facts not supported by the record are interjected. McKay v. State, supra at 36. However, such error is not reversible unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial. Jackson v. State, supra at 673; McKay v. State, supra at 36.

            After reviewing the record in this case, it is clear that the State’s comment was not improper argument nor was it a comment on appellant’s right to not testify. Appellant asserted throughout the case that he was not the driver of the vehicle and, therefore, could not be found guilty of the offense. The State was answering this argument by noting that appellant could have called the driver to testify. See Jackson v State, supra at 674. Nothing about the statement was extreme or manifestly improper. Appellant’s second point of error is overruled.This Court’s Ruling

            The judgment of the trial court is affirmed.

                                                                                    TERRY McCALL

June 16, 2005                                                             JUSTICE

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.