Borgen v. State, 946-83

• Decision Date: 16 May 1984
• Docket Number: No. 946-83,946-83
• Parties: Eric Thomas BORGEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 456

672 S.W.2d 456

Eric Thomas BORGEN, Appellant, v. The STATE of Texas, Appellee.

No. 946-83.

Court of Criminal Appeals of Texas En Banc.

May 16, 1984.

Murry B. Cohen, Stanley G. Schneider, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr. and Richard Mason, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of sexual abuse. V.T.C.A., Penal Code, § 21.04(a)(1). Punishment was assessed by the jury at 10 years' imprisonment and a fine of $10,000.00.

On appeal the Houston Court of Appeals (1st District) reversed the conviction as a result of unobjected to, but improper prosecutorial jury argument at the guilt stage of the trial. Borgen v. State, 657 S.W.2d 15 (Tex.App.--Houston (1st)--1983). We have granted the State's petition for discretionary review to determine the correctness of that decision.

In concluding his argument at the guilt stage of the trial the prosecutor stated:

"... my Lord, you know I don't know if there was quite that much force used ad those threats and so on and so forth and why didn't she do this or that, why did she go here or there and let me tell you sometimes I rather suspect that women find themselves in positions such as this in terms of their own personal safety, it may very well be the best thing to do, to tolerate it as much as you can short of being killed and do you believe for a second that because of lover boy over here not performing sex with [prosecutrix] that she nose dived out a second story window? Well, if you believe that one thing, it remains to me undeniably clear and that one thing is as long as lawyers are for hire justice is for sale. Thank you." (Emphasis added.)

There was no objection to this argument, no request for a jury instruction to disregard, and no motion for mistrial.

The Court of Appeals recognized the general rule that any impropriety in the prosecutorial argument is waived by a defendant's failure to make a proper and timely objection. Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982); Sanchez v. State, 589 S.W.2d 422 (Tex.Cr.App.1979). That court, however, noted an exception to the general rule where the argument of the prosecutor is so prejudicial that an instruction to disregard will not cure the harm. Romo v. State, supra; Smith v. State, 541 S.W.2d 831 (Tex.Cr.App.1976); Rodriquez v. State, 530 S.W.2d 944 (Tex.Cr.App.1975).

Relying upon Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974); Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.1972), and Lewis v. State, 529 S.W.2d 533 (Tex.Cr.App.1975), the Court of Appeals found the argument so prejudicial that a jury instruction to disregard would not have cured the error. The court wrote:

"The statement 'so long as lawyers are for hire, justice is for sale' is not as direct an attack upon defense counsel for accepting employment to represent a person accused of crime as the arguments made in Bray and Lewis, supra; however, the import of such a statement is identical when viewed in light of the court's reasoning in Boyde, supra.

"Appellant's second ground of error is sustained; ...."

Since appellant's second ground of error was that he "was denied due process of law ...." by such argument, the Court of Appeals in effect also found a violation of due process by virtue of the unobjected to argument.

In Todd v. State, 598 S.W.2d 286, 296, 297 (Tex.Cr.App.1980), it was stated:

"It is settled that the approved general areas of jury argument, within which all proper arguments must fall are (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Dunbar v. State, 551 S.W.2d 382 (Tex.Cr.App.1977); Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973). Even when an argument exceeds the permissible bounds of the above areas, such will not constitute reversible error 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 proceeding. Kerns v. State, 550 S.W.2d 91 (Tex.Cr.App.1977); Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972)." (Emphasis added.)

With this background we consider the argument in light of the whole record. There was a stark contrast between the versions of the appellant and the prosecutrix as to the circumstances underlying the alleged offense. There was undisputed evidence that prior to indictment the prosecutrix had an attorney call appellant's first employed counsel (not his trial counsel) to see if the matter could be settled for compensation. The appellant refused.

The prosecutrix, a 20-year-old divorcee, left her secretarial position at 11 a.m. on July 28, 1981, to drive a co-worker, Beverly Villa, to her (Villa's) apartment to pick up her car which was being repaired. The prosecutrix related that upon entering Villa's apartment she encountered appellant, a 43-year-old Norwegian sailor, and Villa's male roommate, Curt, neither of whom she had seen before. Talk turned to the four going to lunch. Appellant claimed he was not properly dressed and asked the prosecutrix to bring his guitar to his apartment while he changed. He insisted she enter his apartment. Appellant then began to talk "dirty" to her like she was a prostitute. When Beverly and Curt arrived five minutes later, appellant pushed Beverly out the door saying the prosecutrix was going to stay. Appellant then twisted prosecutrix's arm behind her back and took off her clothes. He asked her to urinate on him, and offered her honey and fruit juices to drink, but she refused and he poured the honey and juices on her. He dragged her around on the carpet and then urinated in her mouth. Later he tried to force her to commit oral sodomy on him and placed his penis in her mouth. Beverly and Curt returned, but, according to the prosecutrix, they left when they saw what was going on. Later in the afternoon the appellant called the prosecutrix's boss and told him she could not return to work because of personal problems. The beatings continued. About 4 p.m. or so someone came to the door and the prosecutrix was ordered to the bedroom. She found her clothes dressed, and later broke out a window, kicked the screen off, and jumped from the second story apartment. Finding that Beverly had taken her car, she went to the manager's office and called her brother.

Beverly Villa testified the prosecutrix took her to her apartment on the date in question. After talking to Curt a few minutes, she entered the other bedroom and found appellant doing a head stand. The prosecutrix had her hands on his bare thighs. Later the prosecutrix and appellant went to his apartment for him to change for lunch. When Beverly later entered that apartment, she found the prosecutrix in appellant's bedroom in her bra and underwear, and the prosecutrix asked if she (Beverly) was "mad" at her. Beverly related the prosecutrix told her to go on to lunch with Curt, and that she and the appellant would join them later. She gave Beverly the keys to her (prosecutrix's) car. About an hour later, about 1:15 p.m., Beverly and Curt returned to appellant's apartment and found the appellant and the prosecutrix there nude. The prosecutrix told Beverly she didn't care to go back to work, to take her car and pick her up after work at appellant's apartment. She asked Beverly to make an excuse for her with her boss. Beverly demurred and the appellant agreed to call. When Beverly returned after work, she found the prosecutrix at the apartment manager's office.

Beverly related that the prosecutrix told her later she didn't want to file charges but was going to have to because of family pressures.

Beverly admitted appellant had spent the night before the alleged offense in her bed; that she had participated in orgies with the appellant.

The appellant testified that when the prosecutrix arrived at Beverly's apartment on the date in question, she began to...