PAUL VERNON RABORN v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

PAUL VERNON RABORN, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-10-00685-CR

Decided: February 24, 2011

Before Justices Richter, Lang, and Myers

OPINION

Opinion By Justice Myers

Appellant, Paul Vernon Raborn, was convicted of possession of a controlled substance with intent to deliver, and sentenced to two years in state jail.   In one issue, he argues the prosecutor used impermissible jury argument during closing arguments.   We affirm.

Discussion

Appellant alleges in his sole issue that the State's closing argument departed from the permissible areas of jury argument to a degree that appellant was denied a fair and impartial trial.   The relevant portion of the record reads as follows:

[PROSECUTOR]:  Well, you know, [defense counsel] stands here and acts like the allegation didn't happen.   Well, we made an allegation he sold drugs.   No? I have got two officers who watched him go in with nothing in his pockets but $120.   And you know what he came out with?   No $120, two pills.   This officer testified he was in the car with him and took the pills off of him.  [Bradley] Preston 1 made a mistake.   First he said it was the other officer, then he said, no, no, it was the officer who was in the car with me.   So regardless of what problem Officer [Jason] Withrow had,2 I don't know if it's true or not, but I don't want to hide things from you.   I guess I didn't have to have my officer come and tell you that honestly.   But I'm not here to play games with y'all.   I wear a white hat.   You make-you get all the facts to make your decision.

[DEFENSE COUNSEL]:  Your Honor, I object to who wears the white hat or black hat in this room.

THE COURT:  Sustained.

[PROSECUTOR]:  I'm the prosecution.   I took an oath to see justice is done.

[DEFENSE COUNSEL]:  Your Honor, I object, I took an oath too.

[PROSECUTOR]:  Not to see that justice is done, Counsel.

[DEFENSE COUNSEL]:  Absolutely.   That a state bar.

THE COURT:  Overruled.   Go on.

After the jury retired and began to deliberate, defense counsel reiterated his previous objection and

asked for an instruction to disregard:

[DEFENSE COUNSEL]:․  I want to make a record that during the closing arguments the State said, I'm the one that wears the white hat, I'm the one that took an oath.   Both of those are improper statements in a jury trial.   It makes the assumption that I'm the one wearing the black hat, I cannot sit up here-I cannot sit up here and lie.   I'm asking the jury be brought back in here and to be instructed to disregard both of those statements.

THE COURT:  Well, I sustained your objection on the white hat.   And the stuff about the oath, I guess I didn't make a ruling, he moved on.   I'm not going to bring them back, but, you know, I did not sustain the objection when he talked about the oath.   So if you need a record on that, I didn't rule on it, so ․

[DEFENSE COUNSEL]:  Okay. So you are denying bringing them back and instructing them to disregard that?

THE COURT:  Yes. Yes. Yes.

Appellant made two objections to the prosecutor's closing argument.   The first objection was to the prosecutor's statement that he wore “a white hat,” and the second was to the prosecutor's “I took an oath” comment.   Appellant's first objection was sustained, but he did not request an instruction to disregard until the end of the closing arguments, after the jury had retired and started to deliberate.   To preserve error regarding allegedly improper jury argument, a party must object and pursue an adverse ruling by requesting an instruction for the jury to disregard and if the instruction is given, moving for a mistrial.   See Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App.2007);  Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App.1982).

Requests for instructions to disregard must be timely made.   See, e.g., Moore v. State, 999 S.W.2d 385, 403 (Tex.Crim.App.1999) (request for instruction to disregard witness statement made at the end of testimony was not timely);  Cunningham v. State, 848 S.W.2d 898, 905 (Tex.App.-Corpus Christi 1993, pet. ref'd) (“although appellant timely objected, he waited until argument was concluded to request an instruction to disregard.   That request was not timely.”).   Appellant timely objected, but he did not request an instruction until the end of closing arguments, and after the jury had retired to deliberate.   At the time his objection was sustained, the trial court granted appellant all the relief he requested.   See Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App.1993) (en banc) (“It is well settled that when appellant has been given all the relief he requested at trial, there is nothing to complain of on appeal”).   But by failing to contemporaneously request an instruction, he failed to preserve this portion of his issue for our review.

Regarding appellant's second objection, permissible jury argument generally falls within one of the following four general areas:  (1) summation of the evidence;  (2) reasonable deduction from the evidence;  (3) answer to argument of opposing counsel;  or (4) plea for law enforcement.  Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App.1992);  Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973).

The State may not strike at a defendant over the shoulders of his counsel or accuse defense counsel of bad faith or insincerity.  Fuentes v. State, 664 S.W.2d 333, 335 (Tex.Crim.App.1984).   In the present case, the prosecutor argued to the jury that, as “the prosecution,” he took an oath “to see justice is done.”   In response to defense counsel's objection that “I took an oath too,” the prosecutor then said, “Not to see that justice is done, Counsel.”   Such an argument does not fall within any of the four categories of permissible jury argument.   The prosecutor did not merely inform the jury that he represented society, but that there was an ethical distinction between the interests that the two attorneys were hired to represent, and that both attorneys were not necessarily interested in “see[ing] that justice” was “done.”   Drawing such a distinction could serve no purpose other than to imply that the prosecutor was more credible than defense counsel or that his cause was more worthy.   See Lewis v. State, 529 S.W.2d 533, 534 (Tex.Crim.App.1975).

In Lewis, for example, the court found the argument prohibited because the prosecutor specifically told the jury that the defense counsel had not taken an oath to uphold justice as compared to the prosecutor, who had.  Id. In addition, after the trial judge in Lewis sustained the defendant's objection to that argument, the prosecutor contended that defense counsel was not an officer of the court.  Id.3 The court of criminal appeals concluded that the effect of this argument was to instruct the jury that only the prosecutors seek to uphold truth and justice, whereas defense counsel have a license to use any means at their command to mislead the jury.  Id.;  see also Bell v. State, 614 S.W.2d 122, 123 (Tex.Crim.App. [Panel Op.] 1981) (prosecutor's argument that contrasted ethical obligations of the two attorneys was improper)

In Wilson v. State, 938 S.W.2d 57 (Tex.Crim.App.1996), abrogated on other grounds, Motilla v. State, 78 S.W.3d 352, 356-57 (Tex.Crim.App.2002), the prosecutor referred to the fact that he wished to see “that justice is done in this case,” and he had “taken a very sacred oath ․ to see that justice is done in every case I prosecute.”  Id. at 58.   He also said that defense counsel had taken “no such oath,” and that counsel wished “that you turn a guilty man free ․ and he can wish that because he doesn't have the obligation to see that justice is done in this case.”  Id. After the trial court overruled defense counsel's objection, the prosecutor added that defense counsel's “oath is to represent the interest of his client to his utmost within the bounds of the law.   He's done that.   But, see, it's not important to seek truth and justice under his oath.   It is under mine.”  Id. The court of criminal appeals found the prosecutor's remarks to be improper because they were outside the record, manifestly improper, and prejudicial to the rights of the accused.  Id. at 60-61.

The court of criminal appeals has recognized that, generally, the public does not understand the code of ethics by which attorneys are bound.   See Bray v. State, 478 S.W.2d 89, 90 (Tex.Crim.App.1972).   In Bray, the prosecutor argued that he represented the public and he was glad he did not have to represent someone like the defendant.  Id. at 89-90.4  The court concluded the argument was improper, noting that many in the public believe an attorney should not represent a person charged with a crime, especially if there is some indication the person is guilty.  Id. The prosecutor's argument in the present case is similar to the arguments in Wilson, Lewis, and Bray in that the prosecutor's argument contrasted the ethical obligations of the two attorneys.   We therefore conclude the prosecutor's argument was improper.

Turning to the question of harm, if a jury argument exceeds the bounds of proper argument, the trial court's erroneous overruling of a defendant's objection is not reversible error unless it affected the appellant's substantial rights.  Tex.R.App. P. 44.2(b);  Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App.2000);  Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh'g).   In determining whether the appellant's substantial rights were affected, we consider (1) the severity of the misconduct (i.e., the prejudicial effect of the prosecutor's remarks), (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct.  Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004);  Martinez, 17 S.W.3d at 692-93;  Mosley, 983 S.W.2d at 259.

Having concluded the prosecutor's argument was improper, we must determine whether it affected appellant's substantial rights.   We conclude that the effect of the misconduct was relatively mild in this case.   See Martinez, 17 S.W.3d at 693.   The prosecutor's argument, while improper, was not as flagrant as the conduct in other cases, such as Wilson, Lewis, and Bray. Furthermore, after appellant's objection was overruled, the prosecutor moved on to a discussion of the evidence and

did not continue with the improper argument.

Although the trial court overruled appellant's objection and did not issue curative instructions to the jury, we cannot conclude the prosecutor's argument affected appellant's substantial rights.   The jury convicted appellant of possessing with the intent to deliver less than one gram of a controlled substance (Oxycodone), a State jail felony, which has a penalty range of between one hundred and eighty days and two years in a state jail.   See Tex. Penal Code Ann. § 12.35 (West 2003);  Tex. Health & Safety Code Ann. § 481.112(b) (West 2010).   At trial, Bradley Preston testified that he was a confidential informant who paid appellant $120 for two Oxycodone pills as part of a controlled drug buy.   Jeremy Householder, a narcotics officer with the Grayson County Sheriff's Office, monitored the transaction and heard appellant and Preston conduct the controlled drug purchase.   Appellant denied he ever sold any narcotics to Preston, and testified that he had a prescription for Oxycodone because he suffered from bone cancer.   The jury convicted appellant and

assessed his punishment at two years in state jail, probated, no fine, and the trial court sentenced appellant to four years of probation.   Appellant does not challenge the sufficiency of the evidence.   Given the brevity of the prosecutor's comment and the record in this case, which we have carefully reviewed, we conclude the prosecutor's improper argument was harmless.   We overrule appellant's issue.

The judgment of the trial court is affirmed.

FOOTNOTES

FN1. According to the record, Bradley Preston was a confidential informant who paid appellant $120 for two Oxycodone pills as part of a controlled drug buy..  FN1. According to the record, Bradley Preston was a confidential informant who paid appellant $120 for two Oxycodone pills as part of a controlled drug buy.

FN2. Jason Withrow was the officer with the Whitesboro Police Department that introduced Corporal Martin Hall, Grayson County Sheriff's Office, to Bradley Preston, the confidential informant that made the controlled drug buy.   Sometime prior to the trial of this case, Withrow had arrested Preston for an unrelated criminal offense and secured his cooperation.   By the time the instant case was tried, Withrow's employment with the Whitesboro police had been terminated for, according to Hall, the mishandling of evidence.   Hall testified that Withrow took no part in this case apart from introducing the informant.   At the time of trial, Withrow's whereabouts were unknown..  FN2. Jason Withrow was the officer with the Whitesboro Police Department that introduced Corporal Martin Hall, Grayson County Sheriff's Office, to Bradley Preston, the confidential informant that made the controlled drug buy.   Sometime prior to the trial of this case, Withrow had arrested Preston for an unrelated criminal offense and secured his cooperation.   By the time the instant case was tried, Withrow's employment with the Whitesboro police had been terminated for, according to Hall, the mishandling of evidence.   Hall testified that Withrow took no part in this case apart from introducing the informant.   At the time of trial, Withrow's whereabouts were unknown.

FN3. According to the court's opinion:‘Prosecutor Whaley argued, John Ovard (the other prosecutor) and I have taken a solemn oath to God to seek justice.   You judge whether or not we have done it.   No such oath bears on either one of these attorneys (defense counsel).’After the court had sustained appellant's objection, the prosecutor continued, All right.   I would ask you to believe this:  If, assuming this man is guilty, do they (defense counsel) want the truth in here before you?When defense counsel objected and stated that they were officers of the court under the same obligation, Whaley replied, That is not so, Your Honor.Id..  FN3. According to the court's opinion:‘Prosecutor Whaley argued, John Ovard (the other prosecutor) and I have taken a solemn oath to God to seek justice.   You judge whether or not we have done it.   No such oath bears on either one of these attorneys (defense counsel).’After the court had sustained appellant's objection, the prosecutor continued, All right.   I would ask you to believe this:  If, assuming this man is guilty, do they (defense counsel) want the truth in here before you?When defense counsel objected and stated that they were officers of the court under the same obligation, Whaley replied, That is not so, Your Honor.Id.

FN4. The prosecutor's argument was as follows:Our client doesn't sit here at the counsel table with us and our client is not here to confer with us, we represent you folks.   We represent the people here in this County.   That's who are (sic) employer is and suffice it to say Ladies and Gentlemen I am grateful and I shall be eternally grateful that you are the people that are my employers and not the likes of him and that I am not representing this sort of thing.   Rest assured I am very happy about that.   I am grateful that I don't have to make my living that way.MR. MORROW:  We object to that Your Honor.   He represents․MR. SCHEVILLE:  He opened the door Your Honor.   I believe I'm entitled to answer his argument.THE COURT:  The jury heard it.MR. SCHEVILLE:  I will reiterate I'm very grateful I don't have to make my living representing a man who first set up the robbery,․Id. at 89-90..  FN4. The prosecutor's argument was as follows:Our client doesn't sit here at the counsel table with us and our client is not here to confer with us, we represent you folks.   We represent the people here in this County.   That's who are (sic) employer is and suffice it to say Ladies and Gentlemen I am grateful and I shall be eternally grateful that you are the people that are my employers and not the likes of him and that I am not representing this sort of thing.   Rest assured I am very happy about that.   I am grateful that I don't have to make my living that way.MR. MORROW:  We object to that Your Honor.   He represents․MR. SCHEVILLE:  He opened the door Your Honor.   I believe I'm entitled to answer his argument.THE COURT:  The jury heard it.MR. SCHEVILLE:  I will reiterate I'm very grateful I don't have to make my living representing a man who first set up the robbery,․Id. at 89-90.

LANA MYERS JUSTICE

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