Harrison, Johnathen Lee ( 2015 )

£S5-(S
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS ORIGINAL
FROM THE
ELEVENTH COURT OF APPEALS
EASTLAND, TEXAS
Cause No. 11-11-00241-CR
AND
THE 35TH DISTRICT COURT
BROUN COUNTY, TEXAS
SEP 15 2015
Trial No. CR20133
AbelAcosta, CJerk
PETITION FOR DISCRETIONARY REVIEW
JOHNATHEN HARRISON
TDCJ-ID #1670858
FILED IN
MARK LI. STILES UNIT
3060 FM 3514
C°WOFCR,MjJAppEALs
BEAUMONT, TEXAS 77705
SEP 17 2015
PRO-SE
Abel Acosta, Clerk
TABLE OF CONTENTS
LIST OF PARTIES i
INDEX OF AUTHORITIES iii
STATEMENT REGARDING ORAL ARGUMENT Iv
STATEMENT OF THE CASE v
STATEMENT OF PROCEDURAL HISTORY vi
GROUNDS FDR REVIEW vii
ARGUMENTS
Ground One 1
Ground Two 3
Ground Three 5
Ground Four 7
PRAYER 10
CERTIFICATE OF SERVICE 10
n.
LIST OF PARTIES
State's Trial Attorney: Sam Moss
SBN: 24030039
Assistant District Attorney
35th Judicial District Court
Broun County, Texas
200 S. Broadway, Suite 323
Brounuood, Texas 76B01
Tel: 325-646=0444
Petitioner's Trial Attorneys:; Evan,, Pierce-Dones
Attorney For Johnathen Uee Harrison
SBN: 15999400
430 L). Beauregard Ave., Suite B
San Angelo, Texas 76903
Tel:325-659-B929
Heff Robnett
Attorney for Richard George Baker, Gr,
SBN: 1711B450
P0 Box 1583
Midland, Texas 79702-1583
Tel: 432-682-6140
Attorney for Petitioner: Rudy Taylor Laui
Criminal Trial & Appellate Lawyer
SBN: 24039498
205 Center Avenue
Brounuood, Texas 76801
Tel: 325-646-7440
l.
INDEX OF AUTHORITIES
SUPREME COURT CASES Page
Chapman v. California, 87 S.Ct. B24 (1967) 9
Jackson v. Virginia, 99 S. Ct. 2781 (1979) 7
Smith v. Cain, 132 S. Ct. 627 (2012) 7
FEDERAL CASES
U.S. v. Carona, 551 F.3d 1386 (5th Cir. 1977) 1
U.S. v. Raney, 633 F.3d 385 (5th Cir. 2011) 4
STATE CASES
Allen v. State, 149 S.LJ.3d 254 (Tex. App .-Fort Worth 2004) 1
Borjon v. State, 787 S.W.2d 53,57 (Tex.Crim.App. 1990) 3,4
Broun v. State, 96 S.U.3d 50B (Tex.Crim.App. 1.2002) 3
Bufkin v. State, 207 S.ld.3d 779 (Tex.Crim.App. 2006) 1,2
Gonzales v. State, 115 S.U.3d 278 (Tex. App.-Corpus Christi 2003) 3
Haukins v. State, 99 S.li).3d 890 (Tex.App .-Corpus Christi 2003) 6
Nickerson v. State, 312 S.W.3d 250 (Tex.App.-Houston [14th Dist] 2010) 5
Snouden v. State, 353 S.U.3d 815 (TexlCrim .App. 2011) 9
UNITED STATES CONSTITUTION
Fourteenth Amendment 1,5
TEXAS CONSTITUTION
Article 5, §1 3 5
TEXAS PENAL CODE
Section 2.01 B
in;
STATEMENT REGARDING ORAL ARGUMENT
Peibitiofeer"does not request oral argument as the decisional process of
this court uould not be significantly aided by oral argument since the facts
and legal arguments are adequately presented in the petition submitted to this
Court by the Petitioner.
The Petitioner does request oral argument if the State does so, but other
than that, he does not.
IV i v .
STATEMENT OF THE CASE
The Petitioner uas indicted April 23, 2009 for the offense of Burglary of
a Habitation uith the commission of a Sexual Assault. The Petitioner pled "not
guilty" and proceeded to Jury Trial on September 13, 2010. The Petitioner uas
knoun to the alleged victim and she testified that the Petitioner and a co-
defendant entered her home uithout consent and sexually assaulted her. The
evidence consisted of the alleged victims testimony and the contradictory
testimony of the emergency room physician una examined the alleged victim.
The Petitioner diligently maintained that he had consensual sex uith the
alleged victim and produced uitness testimony from an acquaintance familiar
uith both the petitioner and the alleged victim, uho testified that: (1) The
alleged victim gave the Petitioner directions to her house; (2) The alleged
victim left the uitness's house uith the Petitioner; and (3) The alleged
victim made arangements for the uitness to baby-sit her child uhile she uas
gone uith the Petitioner.
The Petitioner steadfastly maintained that he had consensual sex uith the
alleged victim and entered her home only uith her permission. Petitioner
contends he uas urongly convicted.
v.
STATEMENT OF PROCEDURAL HISTORY
The Petitioner uas not appointed Appellate Counsel in sufficient time to
file a Notice of Appeal. Petitioner filed a Writ of Habeas Corpus and uas granted
relief and alloued to file an out of time appeal. The Eleventh Court of Appeals,
at Eastland, Texas, filed a uritten opinion on August 15, 2013. The Appeals
Court also issued a Judgment on that same date, Affirming the Petitioner's
conviction and judgment by the Trial Court. No motion for re-hearing uas filed.
vi,
GROUNDS FOR REVIEW
1. The Appellate Court erred in determining that the Trial Court did not abuse
its discretion by denying the Petitioner's motion for a mistrial, uhen the
Prosecutor accused the Petitioner's defense counsel of being a "Liar" before
the jury. This undermined the integrity of Petitioner's defense counsel and
prejudiced the Petitioner, having an injurious effect on the jury's verdict.
The Petitioner asserts that the Trial Court should have declared a mistrial
and it's instruction to disregard such a prejudicial statement uas
insufficient to cure such a harmful error.
2. The Appellate Court erred in determining that the Trial Court did not
abuse its discretion by admitting evidence that the Petitioner had a "White
Pouer" tattoo, uhich uas actually a "White Pride" tattoo. This evidence had
no elemental or evidentiary value and uas more prejudicial than probative.
The matter of the Petitioner's tattoo uas outside the record or the evidence
of the case and uas introduced by the Prosecutor to arouse the passion and
prejudice of the jury and caused the Petitioner egregious harm.
3. The Appellate Court erred in determining that the prosecutor did not
prejudice the Petitioner by pointing out the alleged victim as she sat in
the courtroom evidence during the prosecutor's closing argument; making
personal opinion comments as to the alleged victim's appearance and
conduct; and that the Trial Court did not abuse its discretion by allouing
the p'rosecutor to place matters before the jury and outside of the record.
This prejudiced the Petitioner, causing him egregious harm.
4. The evidence uas insufficient to support the conviction of the Petitioner
for Burglary of a Habitation uith commission of a Sexual Assault. The
alleged victim's testimony uas contradictory making it unreliable. The
VII,
emergency room physician's testimony, uho examined the allegsd victim, uas
contradictory and inconclusive. There uas also contrary evidence in the
form of testimony from a uitness uho stated that the alleged victim gave the
Petitioner directions to her home and left uith the Petitioner from the
uitness's home, and made arrangements uith the uitness to baby-sit her
child uhile she uas gone uith the Petitioner.
Vlll.
ARGUMENT
GROUND ONE
The Aplpellate Court erred in determining that the Trial Court did not
abuse its discretion by denying the Petitioner's motion for a mistrial when
the prosecutor accused the Petitioner's defense counsel of being a "Liar" before
the jury. This prejudiced the Petitioner and had an injurious effect on the
jury's verdict, violating Petitioner's right to due process and a fair trial.
see: U.S. v. Carona, 551 F.2d 1386 (5th Cir. 1977); U.S.C.A. Const. Amend. 14
"It is the duty of every lauyer not to insert his
personal opinion as to justness of cause, credibility
of uitnesses, counsel's argument, or guilt and
innocence of the accused."
During closing arguments, the prosecutor called the Petitioner's counsel
a "Liar" regarding the ambiguity of the State's medical evidence, in front of
the jury (RR.v.3,pp. 140)
"Both defense counsel start talking about this
medical evidence and--I don't knou. I think flat out
lie about it."
This is clearly an improper and prejudicial statement by the prosecutor, uhich
disparged defense counsel's integrity and credibility, causing the Petitioner
sufficient harm to undermine confidence in the jury's verdict, see; Allen
v. State, 149 S.W.3d 254 (Tex.App.-Fort Worth 2004)
"Prosecutor made improper closing argument by expressing
his personal opinion regarding defense counsel's
argument and engaged in unprovoked personal attack on
defense counsel prejudicing the defendant."
Defense counsel is alloued to controvert the State's alleged facts and by
ridiculing and calling the Petitioner's defense counsel names, the State
violated the Petitioner's right to a fair trial, see: Bufkin v. State, 207
S.W.3d 779 (Tex.Crim.App. 2006)
"A criminal defendant has the right to controvert
the facts upon uhich the prosecution intends to rely.
And that right includes claiming that events unfolded
1 .
in a uay different than the State has! alleged."
Such improper, inflammatory and improper statements by the prosecutor in front
of the jury prejudiced the Petitioner and had an injurious effect on the
jury's verdict causing the Petitioner egregious harm and therefore the
Petitioner's conviction should be reversed and remanded back to the trial court
for a neu trial.
ARGUMENT
GROUND TWO
The Appellate Court erred in determining that the Trial Court did not
abuse its discretion by admitting evidence that the Petitioner had a "White
Pride" tattoo and alloued the prosecutor to shou the jury a picture of the
Petitioner's tattoo uhich prejudiced and inflamed the jury, violating the
Petitioner's right to a fair trial and due process. This evidence uas more
prejudicial than probative and had no evidentiary value, see: Broun v. State,
96 S.W.3d 508 (Tex.Crim.App. 2002)
"To be admissible extraneous evidence must establish
some elemental or evidentiary fact or rebut some
defensive theory."
The prosecutor introduced this picture of the Petitioner's tattoo in
order to prejudice the Petitioner to the jury. This evidence uas meant to harm
the Petitioner. The prosecutor's claim that it uas necessary to identify the
Petitioner uas unfounded. The Petitioner uas personally knoun by the alleged
victim uho did not require a tattoo to identify him. The prosecutor deliberately
inferred that the Petitioner uas a White Supremacist or gang related, and this
placed matters before the jury taht uere outside of the record and prejudicial
to the Petitioner, see: Gonzales v. State, 115 S.W.3d 27B (Tex.App.-Corpus
Christi 2D03)
"A prosecutor cannot place matters before the jury
that are outside the record and prejudicial to the
accused."
The picture of the Petitioner's tattoo uas meant to suay the jury as to the
Petitioner's character and prejudice the Petitioner and ensure that the jury
convicted him. This uas clearly improper by the prosecutor and undermines
confidence in the jury's verdict, see: Borjon v. State, 787 S.W.2d 53,57 (Tex.
Crim.App. 1990)
"Matters that are not in evidence and may not be
inferred by the evidence are usually designed to
arouse the passion and prejudice of the jury and
as such are highly inappropriate."
See also: U.S. v. Raney, 633 F.3d 385 (5th Cir. 2011)
"A prosecutor is not permitted to make an appeal
to prejudice calculated to inflame the jury."
The Petitioner asserts that the Trial Court abused its discretion in admitting
such prejudicial evidence that had no probative value. That this evidence
caused the Petitioner egregious harm and as a result, his conviction should be
reversed and remanded for a neu trial.
ARGUMENT
GROUND THREE
The Appellate Court erred in ruling that the Trial Court did not abuse
its discretion by permitting the p'rosecutor to point out the alleged victim,
sitting in the courtroom audience, during closing arguments to the jury. Then
directed personal opinion comments to the alleged victim during his closing
argument.; This prejudiced the Applicanct and had an injurious effect on the
jury's verdict, violating Petitioner's right to a fair trial and due process.
see: Nickerson v. State, 312 S.W.3d 250 (Tex.App.-Houston [14th Dist.] 2010);
Const. Amend. U.S.C.A:. 14; Tex. Const. Art. 5 §13
"Prosecutor attempting to humanize victim during
closing argument of guilt innocence phase uith
extraneous information outside the record and
making personal opinion comments about the victim
uere improper."
The prosecutor made direct reference to the alleged victim and pointed
her out to the jury and made personal opinion comments directly to the alleged
victim during closing argument, see: (RR.v.3,pp. 137-150)
"The one good move as a matter that you did and you
should be proud of yourself-- You looked out for your
child and gave him to his father."
"After they raped her, she struggled uith them, because
she can't fight back, she is not strong enough, she is
beat doun, she is battered, you can see that."
This is paticularly misleading, prejudicial and inflamatory. This uas clearly
the personal opinion of the prosecutor. This uas also extraneous information
outside the record and prejudicial to the Petitioner. The trial from this
alleged crime uas a year later. There uas no evidence, medical or otheruise,
that the alleged victim uas beaten or battered, and in fact, the only
evidence of physical injury to the alleged victim uere tuo small abrasions on
her vagina that could have resulted from consensual sex uith insufficient
lubrication, not rape. To characterize the alleged victim as beat doun and
battered uas not only extraneous information outside the record, but the
evidence itself reveals no such injury, making this a false misleading
statement to the jury, see: Haukins v. State, 99 S.W.3d 890 (Tex.App.-Corpus
Christi 2003)
"A prosecutor cannot use closing argument to place
matters that are outside the record and prejudicial
to the accused."
The Applicant asserts tbat,:as a result of the prosecutor placing matters
outside the record in order to prejudice and inflame the jury, and the Trial
Court alloiuing such inadmissible and improper conduct; the Petitioner's right
to a fair trial and due process uere violated. The Petitioner's conviction
should therefore be reversed and remanded to the Trial Court for a neu trial.
ARGUMENT
GROUND FOUR
The evidence is insufficient to support the Petitioner's conviction of
Burglary of a Habitation in the Commission of a Sexual Assault, violating the
Petitioner's right to due process, see: Jackson v. Virginia, 443 U.S. 307, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979)
"All convictions by a state court must be supported
by the evidence. And that evidence must prove all the
essential elements of the charge beyond a reasonable
doubt."
There uas sufficient contrary evidence that outueighs any evidence of
guilt. Since the only evidence to support the Petitioner's conviction uas
the alleged victim's claim that she uas raped and inconsistent testimony from
the physician uho examined her, uho admitted that the tuo abrasions found on
the alleged victim's vagina could have resulted from consensual intercourse
in a missionary position uith inadequate lubrication. (RR.v.3,pp. 258-263).
Danessa Gomez testified that the alleged victim left Ms. Gomez's home uith
the Petitioner and his co-defendant, 'after* giving the Petitioner directions to
her home. The alleged victim herself admitted under oath, that she used drugs
in front of her young son, and had multiple, extramarital, affairs uhile she
uas married to the child's father. This contrary evidence far outueighs any
evidence that any reasonably minded jury could consider sufficient to support
a conviction. Had the prosecutor not engaged in misconduct in order to
prejudice and inflame the jury, there is a reasonable probability that the jury
uould have reached a different verdict, see: Smith v. Cain, 132 S. Ct. 627, 181
L. Ed. 2d 571, 80 U.S.L.W. 4028 (2012)
"A reasonable probability is the likelihood of a
different result, great enough to undermine confidence
in the outcome of a trial."
The Petitioner asserts that the evidence is insufficient to support his
conviction. The alleged victim and the expert medical testimony is inconsistent,
the prosecutor deliberately engaged in conduct to inflame and prejudice the
jury and the contrary evidence outueighed the evidence supporting the
Petitioner's conviction, see: Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App.
2004)
"Contrary evidence in a criminal case does not
have to outueigh evidence of guilt, but has to
be only enough to provide reasonable doubt; if
contrary evidence does outueigh evidence supporting
the verdict, then the beyond a reasonable doubt
standard has not been met by the State."
Therefore, the Petitioner asserts that the State did not meet the reasonable
doubt standard set forth in the United States Constitution and Tex. Penal
Code, §2.01
"That all criminal convictions must be proven
beyond a reasonable doubt."
As a result, Petitioner's conviction should be reversed and this Honorable
Court issue an order of acquittal.
CONCLUSION
The Petitioner assarts that the Appellate Court erred in not reversing a
conviction that had clear error that caused the Petitioner egregious harm. The
Trial Court admitted evidence that uas more prejudicial than probative, the
prosecutor committed misconduct by not only calling defense counsel a liar, but
by making personal opinion comments about the alleged victim, to the victim
herself, inffront of the jury. And parading a picture of a tattoo in front of
the jury in order to prejudice the Petitioner and cause a harmful effect on the
jury's verdict. These errors uere not harmless and no reasonably minded
judiciary could declare that these errors uere harmless beyond a reasonable
doubt, see: Snouden v. State, 353 S.W.3d B15 (2011); Chapman v. California,
386 U.S. 18, 87 S. Ct. 824 (1967)
"Before an error can be held harmless the Court
must be able to declare a belief that it uas
harmless beyond a reasonable doubt."
Therefore, the Petitioner asserts that the errors he has alleged are not
harmless. That the constitutional violations that resulted from them,
prejudiced the Petitioner sufficiently to undermine confidence in the outcome,
of his trial, and that as a result, the Petitioner's conviction must be
reversed.
PRAYER FOR RELIEF
Wherefore premise having been considered, the Petitioner humbly prays
that this Honorable Court grant his Petition.for Discretionary Revieu and
reverse his conviction and remand him to the Trial Court for a neu trial or
in the alternative, remand back to the Appellate Court for further revieu
consistent uith this Court's ruling.
Respectfully Submitted,
Johnathen Harrison
TDCJ-ID #1670B58
Mark W. Stiles Unit
3060 FM 3514
Beaumont, Texas 77705
DECLARATION
I declare under penalty of perjury the foregoing to be true and correct.
Executed on the 3rd day of September, 2015.
Duly Sworn,
]ohnathen Harrison
TDCJ-ID #1670858
Pro-Se
CERTIFICATE OF SERVICE
I herby certify that this Petition for Discretionary Revieu uas placed in
the unit mailbox at the Mark W. Stiles Unit, Beaumont, Texas 77705, on
September 4, 2015.
Certified,
/yJohnathen Harrison, Pro se
10,
Opinion filed August 15, 2013
In The
Cietientf) Court of appeal*
No. 11-11-00241-CR
JOHNATHEN LEE HARRISON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR20133
MEMORANDUM OPINION
The jury convicted Johnathen Lee Harrison, Appellant, of the offense of
burglary of a habitation with the commission of a sexual assault, a first-degree
felony. See Tex. Penal Code Ann. § 30.02 (West 2011). The trial court assessed
Appellant's punishment at confinement for sixty years. We affirm.
'Wenote that the Court of Criminal Appeals granted Appellant permission to file this out-of-time appeal.
Issues
Appellant presents three issues on appeal. In the first issue, Appellant
contends that the trial court should have granted a mistrial after the prosecutor
accused Appellant's trial counsel of being a liar. In his second issue, Appellant
argues that the evidence showing that he had a "white pride" tattoo was irrelevant
and was substantially more prejudicial than probative. Appellant asserts in his
third issue that permitting the prosecutor to direct the jury's attention to the alleged
victimnduring~to
Appellant's substantial rights.
Background Facts
Although Appellant does not challenge the sufficiency of the evidence, we
will briefly summarize the evidence in this case. Appellant and his codefendant,
— - .
Richard George Baker, Jr., were tried together. The record from the joint trial
shows that Appellant and Baker entered the home of K.L.T. without her consent
and sexually assaulted her. K.L.T. said that she heard a knock at her door and
opened the door slightly. She saw Appellant and Baker, whom she had met a few
days earlier, on the front porch holding forty-ounce beers. When K.L.T. told them
that they could not come in, Appellant pushed open the door and entered anyway.
She testified that Baker held her arms while Appellant played a CD that he had
brought with him. When she tried to get away, Appellant pulled her by the hair
from the dining room into the living room, took off her shirt, pulled down his
pants, and told her to perform oral sex on him. At the same time this was going on,
Baker penetrated her vaginally from behind with his penis. K.L.T. said that, after
she attempted again to get away, Baker pushed her into a chair and continued to
have sex with her until he ejaculated. But when K.L.T. tried to flee to the
2Baker was also convicted of burglary of a habitation with the commission of a sexual assault and also
received a sentence of sixty years. See Baker v. State, No. 11-10-00329-CR, 2012 WL 5988900 (Tex. App —
Eastland Nov. 29, 2012, no pet.) (mem. op., not designated for publication).
bathroom, Appellant again grabbed her by the hair, told her that he was not
finished, and penetrated her vaginally with his penis; Baker sat on the couch and
drank a beer. K.L.T. called the police after Appellant and Baker left.
Appellant and Baker were arrested. Appellant admitted that he and Baker
had sex with K.L.T., but he claimed that it was consensual sex.
An emergency room doctor examined K.L.T. He rioted two abrasions
around the entry to her vagina. He explained, "Typically abrasions that you see in
that-area—are -usually -due to forced vaginal~penetration~or-Ta~ woman that's^
unreceptive to sexual contact." The doctor testified that he would not expect to see
that type of abrasion after consensual sex.
Accusation that Defense Counsel was a Liar
In his first issue, Appellant argues that the prosecutor, in his closing
argument, improperly accused Appellant's trial counsel of lying and that the trial
court erred in denying Appellant's motion for mistrial based upon that accusation.
We addressed this same issue at length in our opinion in Baker's appeal, and we
concluded that the error was harmless under TEX. R. APP. P. 44.2(b) as applied
through the Mosley factors for improper jury argument and that the argument was
not so egregious as to warrant a mistrial. Baker, 2012 WL 5988900 (citing
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App; 1998)). For the same reasons
announced in our opinion in Baker, we hold that the prosecutor's comment was not
so egregious as to warrant a mistrial.
The complained-of argument reads as follows:
What about this medical evidence? This is what surprises me.
It really does. Because I've done a lot of trials. . . . And [both
defense counsel] start talking about this medical evidence ~ and I
don't know how else to say it, but just spin it ~ that's what lawyers do
--spin it in their direction. I don't know. I think flat out lie about it.
The defense attorneys objected to being called liars in front of the jury, and they
requested a mistrial. The trial court sustained the objections, instructed the jury to
disregard, and denied the motions for mistrial.
Prior to the complained-of argument made by the prosecutor, Appellant's
and Baker's defense attorneys had made statements during their closing arguments
suggesting that the prosecutor's argument may not be "truthful," that the
prosecutor may have "misremembered" the evidence, and that the prosecutor
-would-4ry-to-"mislead'' the jurors;—Appellant's attorney-had-also-addressed the
content of the doctor's expert testimony, and the prosecutor had objected to the
argument as being a misstatement of the record. After the complained-of
argument, the prosecutor addressed the content of the doctor's expert testimony,
and the defense attorneys objected that the prosecutor was misstating the evidence.
In response to these objections, the trial court instructed the jurors to recall the
evidence as they heard it from the witness stand.
When a trial court sustains an objection, instructs the jury to disregard, but
denies a motion for mistrial, we assume without deciding that the argument was
improper and look only to whether the court abused its discretion when it denied
the motion for mistrial. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim; App.
2004). "A mistrial is the trial court's remedy for improper conduct that is 'so
prejudicial that expenditureof further time and expense would be wasteful and
futile.'" Id. (quoting Laddy. State, 3 S.W.3d 547, 567 (Tex. Crim. App^ 1999)).
While a prosecutor's "uninvited and unsubstantiated accusation of improper
conduct directed at a defendant's attorney" unquestionably puts the case at risk,
Only the most egregious argument taints the jury to the extent that it warrants a
mistrial. Mosley, 983 S,W.2d at 258, 260.
To determine whether the error constitutes reversible error, we apply
Rule 44.2(b) of the Texas Rules of Appellate Procedure because, as determined by
the court in Mosley, "improper comments on defense counsel's honesty have never
been held to amount to a constitutional violation." Id. at 259. Appellant suggests
that the error in this case constitutes constitutional error; we must, however, follow
the ruling of the Court of Criminal Appeals in Mosley. Pursuant to Mosley, we are
to consider the following factors when applying Rule 44.2(b) to an improper jury
argument: "(1) severity of the misconduct (the magnitude of the prejudicial effect
of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the
efficacy-of-any- cautionary- instruction^by-the -judge), and (3) the certainty- of:
conviction absent the misconduct (the strength of the evidence supporting the
conviction)." Id. To the extent possible, our review must calculate the probable
impact of the error on the jury in light of the record. Orona v. State, 791 S.W.2d
125, 130 (Tex. Crim. App. 1990). Whether there was overwhelming evidence, or a
lack thereof, does not dictate our analysis; instead, we focus on the error's effect
on the trial. Id. We examine "the source of the error, the nature of the error,
whether or to what extent it was emphasized by the State, and its probable
collateral implications." Id. We also consider "whether declaring the error
harmless would encourage the State to repeat it with impunity." Id.
With respect to the first factor in the Mosley test, "[prejudice is clearly the
touchstone." Hawkins, 135 S.W.3d at 77. In assessing the severity of a
prosecutor's arguments, we do not consider them in isolation from the question of
whether the argument had a prejudicial effect. Id. at 78. Prosecutors' arguments
that "attack the personal morals or trustworthiness of defense counsel are
manifestly improper because they undermine the adversarial system by unfairly
prejudicing the jury against the defendant's attorney." Fuentes v. State, 991
S.W.2d 267, 274 (Tex. Crim. App. 1999). But when the jury is "in a position to
evaluate the truthfulness of the prosecutor's assertion," the prejudice from
improper argument may be minimized. Mosley, 983 S.W.2d at 260. In fact, when
5
the jury is in such a position, the prosecutor's comments could "backfire if the jury
disagrees with the prosecutor's assessment of defense counsels' actions." Id.
In the present case, we cannot hold that the prejudice stemming from the
prosecutor's improper comment in this case warranted a mistrial. Appellant's
counsel had already alluded to the prosecutor's "truthfulness." The prosecutor did
not accuse the defendants of lying, did not accuse defense counsel of
manufacturing evidence, did not argue outside the record, did not inject new facts
"int^tiie-re~cd^
jury in this case was in a position to evaluate the accuracy of the prosecutor's
argument. The jurors had the doctor's testimony before them and were able to
discern it for themselves. Also as in Mosley, we cannot find that the first factor
weighs heavily in Appellant's favor. See id.
As for the second factor, an instruction to disregard is generally sufficient to
cure the prejudice from an improper argument. Dinkins v. State, 894 S.W.2d 330,
357 (Tex. Crim. App. 1995) (where the prosecutor argued that defense counsel
"wants to mislead you a little bit"); McGeev. State, 774 S.W.2d 229, 238 (Tex.
Crim. App. 1989). We presume that the jury followed the trial court's instruction
to disregard.
We cannot hold under the record in this case that the third factor, the
certainty of Appellant's conviction absent the prosecutor's improper argument,
weighs heavily in favor of either side. Although we agree with Appellant that the
evidence in this case was not overwhelming and that the medical evidence may
have been—as the State put it—"the critical evidence in the case," we do not agree
with Appellant that the prosecutor's comment, which improperly cast aspersion on
the veracity of defense counsel with respect to the contents of the doctor's
testimony, affected the outcome of this case. Appellant asserts that, if the
credibility of the defense attorneys had not been "improperly undermined by the
6
State with his assertion that the defense attorneys were liars," then it could not "be
said with any certainty that conviction would have been the result for Appellant."
The jury heard the doctor's testimony relating to the medical evidence and,
presumably, judged the weight and credibility of that evidence for itself.
Furthermore, during its deliberations, the jury requested the doctor's medical
report, and the exhibit containing that report was delivered to the jury. We hold
that the error in this case was harmless under Rule 44.2(b) as applied through the
-Mosley-factorsrfor improperjury argument andthat the argument was notso egre^
gious as to warrant a mistrial.
However, as we stated in Baker.
Although we have found no reversible error in connection with
the State's jury argument, we are not to be taken to approve the
argument in any way. As other courts have expressed, we fail to
understand why prosecutors continue to make arguments of this
nature. See, e.g., Wilson v. State, 938 S.W,2d 57 (Tex. Crim. App.
1996), abrogated on other grounds by Motilla v. State, 78 S.W.3d
352, 356-57 & n.26 (Tex. Crim. App. 2002). That is especially so in
the face of a plethora of cases in which the courts of this State
consistently have held that such arguments clearly are out of
bounds. We are not unmindful of the pace and stress of
trial. However, one would think that, even in the "heat of battle," the
risk of retrial would be caution enough to yield to cooler
passions. The argument in this case is held to result in harmless error;
that will not always be the case.
2012 WL 5988900, at *5. Appellant's first issue is overruled. ;
Tattoo Evidence
In his second issue, Appellant contends that the admission of evidence that
he bore a "white pride" tattoo was irrelevant and substantially more prejudicial
than probative. The record shows that Appellant objected under Tex. R. Evid. 403
when K.L.T., the first witness to testify at trial, began testifying about the
defendants' unique identifying features, which for Baker was a facial scar and for
Appellant was a tattoo. After a discussion at the bench, the trial court overruled
Appellant's objection and admitted into evidence a picture of one of Appellant's
tattoos, the "white pride" tattoo that had assisted K.L.T. in identifying Appellant.
The State asserts that Appellant has not preserved this issue for review
because the same or similar evidence was presented by other witnesses without
objection. An objection to photographic evidence is waived if the same
information contained in the photograph is conveyed to the jury in some other
form.^For^vrSta^
either object each time the complained-of evidence is offered or obtain a running
objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). The
admission of evidence over objection "will not result in reversal when other such
evidence was received without objection, either before or after the complained-of
ruling." Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
The record shows that Appellant did not request a running objection and that
evidence of Appellant's tattoo was presented by other witnesses without objection.
Officer Anna Sturgeon, the first officer to respond to K.L.T.'s call for help,
testified that K.L.T. was traumatized when the officer arrived around 3:15 a.m.
K.L.T. reported that she knew the first name of one of the suspects, "John," but did
not know his last name or the name of the other suspect. Officer Sturgeon testified
without objection that K.L.T. told her that "John" had "a tattoo on his upper right
arm that says 'white power' in the shape of a cross." The picture of Appellant's
tattoo shows that Appellant's upper arm had a tattoo with the words "WHITE
PRIDE" in the shape of a cross. Officer Danny Hutchins, who helped arrest Baker
and Appellant, later testified without objection that he had received descriptive
information of the suspects that he was looking for; that information included the
fact that one of the suspects had a scar on his face and one of the suspects "had a
tattoo of white power" on him.
8
We note the difference between the words "power" and "pride." However,
the descriptions of the tattoo were substantially similar to the photo. During trial,
K.L.T. identified the photo of Appellant's tattoo as the same tattoo that "John" had.
She had said earlier that she believedthe tattoo said "white pride or white power."
The record reveals that Appellant did not object each time evidence of his
tattoo was offered and that he did not obtain a running objection. Consequently,
we cannot hold that the error, if any, in overruling Appellant's objection and
-admitting-evidence ofWs-tattoo-constitutes reversible enoTrSeeValle;i09-SiW-36r
at 509; Leday, 983 S.W.2d at 718. Appellant's second issue is overruled.
Prosecutor's Closing Argument
In his final issue, Appellant argues that permitting the prosecutor to direct
the jury's attention to K.L.T. during the prosecutor's closing argument at the
guilt/innocence phase of trial affected Appellant's substantial rights. Appellant
asserts that the prosecutor "gestured to [K.L.T.]'s present condition as she sat in
the audience" and that he "directed a personal opinion comment to the alleged
victim during closing argument." The State responds that Appellant failed to
preserve this issue for review because Appellant did not object at trial. We agree.
The relevant portions of the record from the State's closing argument show
the following:
(To [K.L.T.]:) The one good move as a mother that you did,
you should be proud of yourself for doing that because you looked out
for your child and you gave him to his father.
... You think of how many houses these guys had to get
kicked out of that night. . . . [K.L.T.], after they raped her, as she
struggled with them, because she can't fight back, she is not strong
enough, she is beat down, she is battered, you can see that. She
couldn't fight —
At that point, Appellant's attorney stated, "May the record reflect that when the
prosecutor said 'You can see that,' he gesticulated with his head towards the
alleged victim."
Appellant did not lodge any objection at trial either time the prosecutor
directed the jury's attention to K.L.T. To preserve a complaint for appellate
review, the complaint must first be made in the trial court by a timely request,
objection, or motion. Tex. R. App. P. 33.1(a); Cockrell v. State, 933 S.W.2d 73, 89
(Tex. Crim. App. 1996). In Cockrell, the court specifically concluded, "[W]e hold
a defendant's failure to object to a jury argument or a defendant's failure to pursue
to an adverse ruling his objection to a jury argument forfeits his right to complain
about the argument on appeal." 933 S.W.2d at 89. Because Appellant did not
object at trial, he failed to preserve for appellate review the complaints that he
urges in his third issue. Appellant's third issue is overruled.
This Court's Ruling
We affirm the judgment of the trial court.
TERRY McCALL
JUSTICE
August 15,2013
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
10
1 lTH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Johnathen Lee Harrison, * From the 35th District
Court of Brown County,
Trial Court No. CR20133.
Vs. No. 11-11-00241-CR * August 15,2013
The State of Texas, * Memorandum Opinion by McCall, J.
(Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.)
This court has inspected the record in this cause and concludes that there is
no error in the judgment below. Therefore, in accordance with this court's
opinion, the judgment of the trial court is in all things affirmed.
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