ALBERT JAMALL MCALISTER v. THE STATE OF TEXAS (2024)

CONCURRING OPINION

I join the Court's decision to refuse discretionary review of Appellant's petition. The alleged error occurred when the Appellant failed to appear for part of the first phase of his trial, including all of the closing arguments. As a result, the Appellant's trial attorney made an oral motion in limine to preclude bringing any attention to Appellant's absence. The record clearly reflects that the trial judge did not want either side to mention Appellant's absence. The State agreed. However, during the State's closing argument, the prosecutor approached Appellant's empty chair and kicked it while arguing to the jury to hold Appellant accountable for his actions.

Def. Counsel: Excuse me, Judge. Excuse me[, prosecutor]. I'm going to object[,] and I would ask that the record reflect that the prosecutor was over here pointing out that Mr. McAlister is not here. I can't raise that objection without stating that I'm waiving any of that. But the record needs to reflect that was done and [that] the [c]ourt has specifically instructed everyone not to do that. I object to it.

The Court: What's the State's response?

Prosecutor: I didn't say anything, Your Honor, except it's time to hold somebody accountable.

The Court: All right. I'll overrule the objection.

Def. Counsel: Thank you.

Prosecutor: Your form had rehabilitation, punishment[,] and det[e]rrence. Det[e]rrence is the law. Det[e]rrence is a locked door. Rehabilitation, we can't begin to rehabilitate anybody until we hold them accountable. There is a punishment aspect to this whole system. You have a victim that had sentimental jewelry stole[n] from her that will never be recovered. It wasn't a dollar amount to her. It was the safety[ ] and the loss of sentimental value. And for those reasons we are asking you to hold [McAlister] guilty. Thank you.

The Court: [Def. Counsel], reconsidering your objection, can you restate it?

Def. Counsel: I object, first of all, I can't make [an] objection without drawing attention to the obvious[—]that Mr. McAlister is not here. But the [c]ourt instructed the parties to not refer to that. I made a specific request prior to the jury coming in here. And the record that I wanted to make sure the record reflected is that [the prosecutor] -- who is so someone else that might read this record -- [the prosecutor] is at the prosecutor's table far end of the prosecutor's table, the closest person to the jury and came directly over to where I was seated, which there's no reason for him to be over here. There's no --there's no demonstrative evidence over here, other than he kicked this chair that Mr. McAlister was sitting in out in front of him to make it very obvious that Mr. McAlister is not here[,] and that's a direct violation, in my opinion, of what the [c]ourt had told us to do. So that's my objection. I just want to make sure the record reflected where everybody was walking[,] and it was about 20 feet for him to come over here. (emphasis added).

“[T]o perform its high function in the best way justice must satisfy the appearance of justice.”¹ Foul strikes below-the-belt, even when legally harmless, do nothing to further the appearance of justice in the outcome.² While no person is infallible, prosecutors for the State should aspire to be better.

With these thoughts, I join the majority in refusing discretionary review.

FOOTNOTES

1.   In re Murchison, 349 U.S. 133, 136 (1955) (quotation and citation omitted).

2.   “But while he may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88 (1935).

Richardson, J., filed a concurring opinion in which Walker, Slaughter, and McClure, JJ., joined.