Borjan v. State

• Decision Date: 21 March 1990
• Docket Number: No. 1055-86,1055-86
• Citation: 787 S.W.2d 53
• Parties: Carlos E. BORJAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 53

787 S.W.2d 53

Carlos E. BORJAN, Appellant, v. The STATE of Texas, Appellee.

No. 1055-86.

Court of Criminal Appeals of Texas,

En Banc.

March 21, 1990.

Richard E. Langlois, San Antonio (court appointed), for appellant.

Sam D. Millsap, Jr., Former Dist. Atty., Fred G. Rodriguez, Dist. Atty., Daniel Thornberry, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM. ¹

The appellant was found guilty of the offense of aggravated rape of a child and assessed a punishment of twenty-five years confinement in the Texas Department of Corrections. See § 22.021, Tex. Penal Code. A majority of a panel of the Fourth Court of Appeals reversed the appellant's conviction on the basis of an improper jury argument during the punishment phase. Borjan v. State, 715 S.W.2d 94 (Tex.App.--San Antonio 1986, pet. granted). The State's argument was held to be "outside the record, called upon the jury to speculate about matters not in evidence, was calculated to arouse the passion or prejudice of the jury, and was extremely harmful and prejudicial." Id., at 98. By way of three points of error, the State challenges the holding of the court of appeals.

The appellant was found guilty of having sexual intercourse with his twelve year old stepdaughter. During the State's closing argument, the following transpired:

So I urge you, when you begin deliberating, when you go back there, think of the victims of these crimes, think of the ones who never come forward, who can't stand to tell everybody about it.

[Defense counsel]: I object, I think it's--

[State]: They have some rights.

THE COURT: Just a moment.

[Defense counsel]: I think it's prejudicial and inflammatory and outside the record.

THE COURT: I overrule the objection.

[Defense counsel]: Note my exception.

THE COURT: You've got two minutes.

[State]: Thank you, Your Honor. This trial, in essence, has been Kathy's day in court, 11 years old, 12 years old, 13 years old and back, she's going to carry it with her for a long time, for the rest of her life.

Here is an individual who should know better, who took advantage of the situation, abused her, and you're going to let him out? Please don't do that. Let him know how you really feel about this. How much is it worth? This is Kathy's day in court. Doesn't she deserve something for this? For the ones who never come and tell you about it, who are too frightened--[emphasis added]

The appellant renewed his objection which the trial court overruled.

The court of appeals held that the State's argument was improper, and in so doing wrote:

The prosecutor's argument called upon the jury to speculate about other victims of rape. The jury could have properly inferred that appellant had raped others who had not reported the offense. The only logical deduction is that the jury was asked to assume facts not in evidence to reach a decision in the assessment of punishment. The test for determining whether the prosecutor's argument mandates a reversal is based on the probable effect the argument had on the minds of the jurors.

Id., at 97-98.

The dissenting opinion contended that the State's argument was a proper plea for adequate punishment and law enforcement. Furthermore, the dissent claimed that the State's argument was a reasonable inference from the record because the record revealed that the appellant had threatened the victim with physical harm to secure her silence. In addition, a testifying doctor had explained that adolescent children have extreme difficulty discussing such things.

Initially, the State contends that the court of appeals' decision is in conflict with the decision of this Court in Stone v. State, 574 S.W.2d 85 (Tex.Cr.App.1978). ² The State also contends that the prosecutor's argument was a reasonable inference drawn from evidence in the record.

It is well established that proper jury argument must fall within one of the following categories: (1) summary of the evidence; (2) reasonable deduction from the evidence; (3) in response to argument of opposing counsel; and (4) plea for law enforcement. Madden v. State, 721 S.W.2d 859, 862 (Tex.Cr.App.1986); Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973).

Initially, the State contends that the complained of argument was a proper plea for law enforcement relying on Stone, supra. A proper plea for law enforcement may take many forms, one of which is to argue the relationship between the jury's verdict and the deterrence of crime in general. Shippy v. State, 556 S.W.2d 246, 257 (Tex.Cr.App.1977); Bowman v. State, 446 S.W.2d 320 (Tex.Cr.App.1969); Grant v. State, 162 Tex.Cr.R. 444, 286 S.W.2d 422 (1956). As the State notes, this Court has permitted the prosecutor to argue that juries should deter specific crimes by their verdict. See Wilson v. State, 605 S.W.2d 284, 287 (Tex.Cr.App.1980) (robbery); Porter v. State, 601 S.W.2d 721, 723 (Tex.Cr.App.1980) (robbery); Bacon v. State, 500 S.W.2d 512 (Tex.Cr.App.1973) (robbery); Arocha v. State, 495 S.W.2d 957, 959 (Tex.Cr.App.1973) (sale of controlled substance); Owens v. State, 168 Tex.Cr.R. 88, 323 S.W.2d 260, 261 (1959) (murder); Urteago v. State, 169 Tex.Cr.R. 160, 333 S.W.2d 133 (App.1960) (possession of marihuana); Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App.1974) (DWI); Payne v. State, 164 Tex.Cr.R. 306, 298 S.W.2d 151, 154 (App.1957) (DWI); White v. State, 162 Tex.Cr.R. 337, 284 S.W.2d 902, 903 (App.1955); (liquor law violation); Bowman, supra (rape); Walthall v. State, 594 S.W.2d 74, 83 (Tex.Cr.App.1980) (obscenity); Goocher v. State, 633 S.W.2d 860 (Tex.Cr.App.1982) (obscenity).

The State may also argue the impact of the jury's verdict on the community. See, e.g., Adams v. State, 685 S.W.2d 661, 671 (Tex.Cr.App.1985); Haynes v. State, 627 S.W.2d 710, 714 (Tex.Cr.App.1982). The State may not, however, argue that the community or any particular segment of the community expects or demands either a guilty verdict or a particular punishment. Cortez v. State, 683 S.W.2d 419 (Tex.Cr.App.1984) and cases cited therein; Goocher v. State, supra.

The State, in its brief, sets out several examples in which the State has been permitted to argue the impact of the jury's verdict on narrower groups making up the "community." For example, this Court has permitted arguments on behalf of law enforcement officers who were the victims of a criminal offense. See, e.g., Rhodes v. State, 450 S.W.2d 329, 331-332 (Tex.Cr.App.1970). This Court has also approved of arguments on behalf of the rights of highway drivers subjected to drunken drivers. Strahan v. State, 172 Tex.Cr.R. 478, 358 S.W.2d 626 (1962). Likewise, this Court has permitted arguments on behalf of women and children. Stone v. State, supra; Carver v. State, 510 S.W.2d 349, 355-356 (Tex.Cr.App.1974); Anderson v. State, 486 S.W.2d 569, 572 (Tex.Cr.App.1972); Myers v. State, 468 S.W.2d 847, 848-849 (Tex.Cr.App.1971). These types of arguments are permissible in that the jury is reminded of the effect that their verdict may have on the rights of a particular segment of the community.

It is well established that a plea for law enforcement is one of the four categories of proper jury argument. Landry v. State, 706 S.W.2d 105 (Tex.Cr.App.1985). Consistent with that proposition, in Stone v. State, supra, this Court held the following argument to be a proper plea for adequate punishment and law enforcement:

'... She will still have the scars of some sort that will bring her back to that point in time when she was in that trailer and now she knows or has some idea of the impact of what went on and she knows how it was bad and wrong, and I'm sure it's embarrassing to her, and don't you know it will always embarrass her if someone will know what happened to her back when she was a little girl at the hands of this defendant.

Now, that's sad it really is, and you should think about her when you're assessing your punishment. Let's think about her and think about the other children that live in this community that are subjected to this type of conduct by others and use your common sense.' [Emphasis added]

Id., at 90.

The appellant agrees that the argument in Stone, supra, although limited to a particular segment of the community, was correctly classified as a proper plea for law enforcement. The appellant, however, distinguishes the argument in Stone, supra, from the argument in the present case. The appellant contends that the prosecutor in Stone, supra, clearly referred to "other" children who were subjected to sexual abuse committed by those "other" than the defendant. By doing so, the prosecutor in Stone, supra, properly asked the jury to consider the impact of their verdict on the narrower class of children within the community. The appellant claims in this case that the State did not narrow its argument sufficiently, but instead invited the jury to speculate that other children had been victimized by the appellant but were too afraid to come forward.

The law provides for, and presumes a fair trial, free from improper argument by the prosecuting attorney. Dickinson v. State, 685 S.W.2d 320, 322 (Tex.Cr.App.1984); Richardson v. State, 158 Tex.Cr.R. 536, 257 S.W.2d 308 (1953). An improper argument constitutes reversible error when in light of the record as a whole it was extreme or manifestly improper, violative of a mandatory statute, or injected new facts harmful to the accused into the trial proceedings. Phillips v. State, 701 S.W.2d 875, 892 (Tex.Cr.App.1985); Vineyard v. State, 131 Tex.Cr.R. 476, 100 S.W.2d 362 (1973).

Thus, a prosecutor is clearly prohibited from making reference during final argument to extraneous offenses for which the accused is not currently on trial. Melton v. State, 713 S.W.2d 107 (Tex.Cr.App.1986). Accordingly, even if the extraneous offenses are admissible during trial, the prosecutor cannot ask the jury to assess...