Coggeshall v. State

• Decision Date: 15 January 1998
• Docket Number: 2-96-601-CR,Nos. 2-96-599-C,2-96-600-C,s. 2-96-599-C
• Citation: 961 S.W.2d 639
• Parties: Charles Boyce COGGESHALL, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 639

961 S.W.2d 639

Charles Boyce COGGESHALL, Jr., Appellant, v. The STATE of Texas, Appellee.

Nos. 2-96-599-CR, 2-96-600-CR, 2-96-601-CR.

Court of Appeals of Texas,

Fort Worth.

Jan. 15, 1998.

Cindy Stormer, Gainesville, J. Rex Barnett, Douglas T. Emerson, Fort Worth, for appellant.

Tim Curry, Criminal District Attorney, Charles M. Mallin, Tanya S. Dohoney,

Christy Jack, Assistant Criminal District Attorney, Fort Worth, for appellee

Before the court en banc.

OPINION

LIVINGSTON, Justice.

Appellant Charles Coggeshall, Jr. appeals three cases in which he pled guilty to one count of aggravated sexual assault of a child and two counts of indecency with a child. A jury heard argument on punishment and assessed sentences of life, twenty years, and twenty years, respectively. Appellant claims the trial court erred in: (1) failing to sustain appellant's objection to the State's closing argument reference to claims that his victim hid under a desk at school and at home because the evidence was not within the record; and (2) determining that the State's use of peremptory challenges to strike two of the four African-American jurors on the panel did not present a prima facie case for error under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

I. IMPROPER JURY ARGUMENT CLAIM

A. Background Facts

Appellant first complains that the trial court committed reversible error when it denied his motion for a mistrial and failed to sustain his objections after the prosecutor made three improper references to evidence not in the record. The State argues that, even if error occurred, the error is harmless.

During the trial on punishment, appellant took the stand and the prosecutor cross-examined him about his crimes and his relationship with the victims, one of whom was his stepdaughter, C.C. While cross-examining appellant about his stepdaughter's problems at school, the following exchange occurred:

[PROSECUTOR]: Did you know she was hiding under her desk?

[APPELLANT]: No.

[APPELLANT'S ATTORNEY]: Your Honor, I am going to object that the questions are based on facts not in evidence.

[THE COURT]: Sustained. [Emphasis added]

Later, during closing arguments, the prosecutor again alluded to the victim hiding under her desk at school:

[PROSECUTOR]: All he is asking in return for their body is the peace that they have at night, the nightmares that they have, the hiding under the desk, the emotional and behavioral problems that [C.C.] has.

Ladies and Gentlemen, that is too high a price to pay. That is too high a price for any child to pay even once, and it is offensive to claim otherwise, to claim that in return for food, clothes, and shelter, they should submit to his hands.

[APPELLANT'S ATTORNEY]: Objection, Your Honor, that is a misstatement of the evidence. That's a misstatement of the argument of Counsel.

[THE COURT]: Overruled. [Emphasis added]

Several minutes later, the following exchange occurred:

[PROSECUTOR]: Ladies and Gentlemen, he's been given plenty of chances. He is an habitual offender. He is an opportunist pedaphyle [sic] who will prey upon these children if he is ever given another opportunity. He needs to be punished, and he needs to be punished severely. Why do you think [C.C.] was hiding under the desk at home?

[APPELLANT'S ATTORNEY]: Objection, outside the record. There has been no evidence of that.

[PROSECUTOR]: I will rephrase that, Judge.

[THE COURT]: Sustained.

[APPELLANT'S ATTORNEY]: Motion to disregard.

[THE COURT]: Yes. You will disregard. There was no evidence about that.

[APPELLANT'S ATTORNEY]: Motion for mistrial.

[THE COURT]: Overruled.

Go ahead.

[PROSECUTOR]: Why do you think she was hiding under the desk at school?

[APPELLANT'S ATTORNEY]: Objection, Your Honor, once again, outside the record.

[THE COURT]: That's overruled. [Emphasis added].

B. Discussion

The purpose of closing argument is to facilitate the jury's proper analysis of the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the admitted evidence alone. See Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. [Panel Op.] 1980); Taylor v. State, 911 S.W.2d 906, 911 (Tex.App.--Fort Worth 1995, pet. ref'd). To be permissible, jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel's argument; or (4) plea for law enforcement. See Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App.1992), cert. denied, 510 U.S. 829, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973).

Here, the prosecutor referred four separate times to a fact that was never established by the evidence, namely that the victim had resorted to hiding under her desk at school. The State does not contest that this fact was outside the record, nor does it explain the basis upon which the prosecutor believed it to have occurred. The record reflects that appellant's attorney objected each time the prosecutor brought up this fact. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996) (holding objection is necessary to preserve error for all improper jury arguments). The trial court sustained the first objection, overruled the second objection, sustained the third objection, and overruled the fourth objection. This sequence of events requires some explanation and analysis to determine if the trial court erred.

The trial court properly sustained appellant's first objection to the prosecution's use of the fact at issue. The problems arose with appellant's second objection. This second objection came during closing arguments and was not as specific or timely as it could have been. ¹ It appears the trial court was unsure of the basis for the second objection and overruled it without eliciting further discussion of its nature or merits. Thereafter, the prosecutor apparently concluded the evidence was fair game and alluded to the fact several minutes later. ² Appellant promptly made a third objection to the comment and the trial court immediately sustained the objection, and instructed the jury to disregard the fact. Appellant's motion for a mistrial was denied. Immediately after the court denied the motion for mistrial, the prosecution repeated the same phrase, exchanging the word "house" for "school." Appellant again objected but the court overruled the objection. From these facts, we find the trial court committed error in overruling appellant's second and last objection to the prosecutor's improper reference to a fact not in evidence.

Thus, we must analyze whether failure to sustain appellant's objections to the improper arguments amounts to reversible error. See Orona v. State, 791 S.W.2d 125, 128 (Tex.Crim.App.1990); Faulkner v. State, 940 S.W.2d 308, 313 (Tex.App.--Fort Worth 1997, pet. ref'd) (en banc op. on reh'g). Under Texas Rule of Appellate Procedure 44.2(a) and (b), ³ we must determine whether the error is constitutional or one that could have affected the appellant's substantial rights. ⁴ TEX.R.APP.P. 44.2(a)-(b). If the error is constitutional, we must apply Rule 44.2(a). Otherwise, we must apply Rule 44.2(b) and disregard the error if it does not affect the appellant's substantial rights.

We first ask whether prosecutorial misstatements of the evidence normally amount to "constitutional error." Case law interpreting Federal Rule of Criminal Procedure 52 ⁵ is instructive in this instance. Our review of federal case law reveals that appellate courts have consistently held that improper prosecutorial comments and misstatements are not constitutional in nature but can affect a defendant's substantial rights. See, e.g., United States v. Apodaca, 666 F.2d 89, 97 (5th Cir.), cert. denied, 459 U.S. 823, 103 S.Ct. 53, 74 L.Ed.2d 58 (1982); United States v. Martinez, 616 F.2d 185, 187 (5th Cir.1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1694, 68 L.Ed.2d 193 (1981); United States v. Steinkoenig, 487 F.2d 225, 229 (5th Cir.1973); Vaccaro v. United States, 461 F.2d 626, 634-36 (5th Cir.1972).

Having found no constitutional error, Rule 44.2(a) is inapplicable. Therefore, we are to disregard the error unless a substantial right is affected. Rule 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).

We conclude that the trial court's error did not affect appellant's substantial rights. First, appellant pled guilty, took the stand, and admitted his crimes. Second, the State presented ample evidence and straightforward testimony from his victims and appellant himself that he: (1) repeatedly fondled, sodomized, and performed oral sex with his pre-teen stepdaughter for a period of approximately three to four years; (2) repeatedly fondled his five-year-old son; and (3) fondled his neighbor's five-year-old daughter. This evidence more than overshadows the error the trial court made in allowing the prosecutor to incorrectly summarize the evidence presented about C.C.'s emotional state after suffering appellant's abuse. Whether C.C. hid under a desk at school is trivial and not particularly germane in light of the overwhelming evidence of appellant's guilt. We must disregard the error pursuant to Rule 44.2(b) and overrule appellant's first point of error.

II. BATSON VIOLATION CLAIM

A. Background Facts

Appellant next argues that the trial court erred in finding that the prosecution's use of peremptory strikes against two of the four African-American jurors on the panel did not present a prima facie case for Batson error. The State claims that appellant: (1) waived his complaint by pleading guilty; (2) failed to preserve his complaint because he did not obtain an adverse ruling; and (3) failed to present a prima facie showing of Batson error.

After voir dire, the following...