Tonya Ann Rodriguez v. State ( 2015 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00190-CR
TONYA ANN RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court No. 29,230
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Tonya Ann Rodriguez admittedly caused a spiral fracture of the femur of A.H., a three-
month-old child in her care, in Hunt County, resulting in a conviction for the second degree felony
of reckless injury to a child. During closing arguments in the punishment phase of her trial, this
exchange took place:
[The State]: So I tell you this: Start your deliberations at 11 years and go
up from there because that’s a sign to this defendant and our community that we
never even consider --
[Defense Attorney]: Objection, Your Honor. The State is -- the law says
the jury can consider the full range and he’s giving instructions to start at a certain
place and that’s improper argument.
[The State]: They were qualified on the full range, Your Honor. They don’t
have to consider it if --
[Defense Attorney]: It’s improper -- it’s improper for a prosecutor to start
telling the jury how or where they should start deliberating or how to deliberate.
It’s improper argument.
THE COURT: Well, let’s -- rather than instruction of where to start, I think
you can argue where the State would like to see the punishment range go from.
[The State]: Okay. So where State [sic] believes that the range that should
be honestly considered, based on the facts that you heard, is 11 years and up because
that sends a message that our community never even considered probation in this
case.
Rodriguez argues on appeal that the trial court harmfully erred in allowing the State’s
argument for at least an eleven-year sentence. We disagree and affirm the trial court’s judgment,
because, here, the trial court did not err.
The proper jury arguments include (1) summation of the evidence, (2) reasonable
deductions from the evidence, (3) answers to arguments of opposing counsel, and (4) pleas for law
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enforcement. Walker v. State, 664 S.W.2d 338, 340 (Tex. Crim. App. 1984). Reversible error
results from improper prosecutorial argument only if the argument is extreme, manifestly
improper, injects new and harmful facts into the case, or violates a mandatory statutory provision
and is thus so inflammatory that its prejudicial effect cannot reasonably be cured by a jury
instruction to disregard. See Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991).
An instruction by the trial court to disregard an objectionable argument will ordinarily cure the
error unless the argument was so inflammatory that its prejudicial effect could not reasonably be
removed by the instruction. Kinnamon v. State, 791 S.W.2d 84, 89 (Tex. Crim. App. 1990)
(per curiam).
We review for an abuse of discretion a trial court’s ruling on an objection asserting
improper jury argument. Whitney v. State, 396 S.W.3d 696, 703–04 (Tex. App.—Fort Worth 2013,
pet. ref’d). An abuse of discretion has occurred when the trial court’s decision lies outside the
zone within which reasonable persons might disagree. See McCarty v. State, 257 S.W.3d 238, 239
(Tex. Crim. App. 2008).
To preserve error in jury argument, a party must ordinarily show that he or she objected to
the asserted error and persisted on the point until getting an adverse ruling. Cockrell v. State, 933
S.W.2d 73, 89 (Tex. Crim. App. 1996).
While not expressly sustaining or overruling Rodriguez’ objection, the trial court partially
sustained the objection and gently directed the State to modify its argument to make clear that the
State was communicating, not an instruction or a directive to the jury, but the State’s desire or
request, that the jury assess a sentence of at least eleven years’ confinement. And, since there was
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no further objection, we conclude that Rodriguez preserved an argument for appeal only to the
extent the trial court overruled the objection, that is, in allowing the State’s request that the jury,
in its punishment deliberations, assess at least eleven years’ confinement.
Rodriguez distinguishes between an argument that the State wants the jury to assess
confinement of eleven or more years and an argument that the State wants the jury to consider
only eleven or more years. Such a distinction is important when qualifying jurors, since jurors
must generally be able to consider the full range of punishment. See Cardenas v. State, 325 S.W.3d
179 (Tex. Crim. App. 2010). Yet, once guilt has been established and the jury has heard the
punishment evidence and is being asked to assess punishment, an argument that a party wants the
jury to start by considering a certain minimum or maximum sentence is nothing more than a request
that they assess a higher or lower sentence commensurate with the party’s interests. No authority
has been cited, and none has been found, that such a request is improper argument.
We see little practical difference between the argument allowed here and that approved in
the case of Vanderhorst v. State. See Vanderhorst v. State, 821 S.W.2d 180 (Tex. App.—Eastland
1991, pet. ref’d). There, the State asked the jury to begin deliberations “in the upper range” based
on the facts of the case. Vanderhorst lodged an objection similar to the one lodged here. On
appeal, the argument was allowed as a proper plea for law enforcement. Id. at 186.
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We overrule Rodriguez’ point of error and affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: July 22, 2015
Date Decided: August 5, 2015
Do Not Publish
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