Darby v. State

• Decision Date: 18 April 1996
• Docket Number: No. 2-95-010-CR,2-95-010-CR
• Citation: 922 S.W.2d 614
• Parties: David Obie DARBY, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 614

922 S.W.2d 614

David Obie DARBY, Appellant, v. The STATE of Texas, State.

No. 2-95-010-CR.

Court of Appeals of Texas Fort Worth.

April 18, 1996.

Rehearing Overruled June 20, 1996.

Ward Casey, Fort Worth, for appellant.

Tim Curry, Criminal District Attorney; Betty Marshall and Charles M. Mallin, Assistant Chiefs of the Appellate Section; Sylvia Mandel, Michael Klein, Richard Salamy, Assistant Criminal District Attorneys, Fort Worth, for appellee.

Before DAY, RICHARDS and HOLMAN, JJ.

OPINION

HOLMAN, Justice.

David Obie Darby pled not guilty to the offense of indecency with a child by sexual contact, but pled "true" to two enhancement paragraphs of the indictment. A jury found him guilty of the offense, and the court assessed punishment of thirty years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Darby's appeal protests that the prosecutor's closing argument impermissibly commented on his failure to testify; that a sexually explicit magazine in evidence should have been ruled inadmissible; that the trial court erred by overruling his motion for new trial without a hearing; and that he had ineffective assistance from trial counsel. We affirm.

The female complainant was thirteen years of age, living with her unemployed mother, at the time of the charged offense. The mother, D.L., had sought work as a babysitter by placing the following classified ad in a newspaper:

Infant care, $250 a week, call details, south Arlington, [telephone number].

In response to the ad, Darby telephoned, told D.L. his name was "Vance," and asked whether she would baby-sit after day-care hours, on weekends and at night. D.L. declined, so Darby asked whether she knew any teenage girls who would be interested in baby-sitting at those times. When D.L. mentioned her thirteen-year-old daughter, Darby said he owned "Benbrook Photography and Video Studio" and asked about the daughter's physical appearance. Darby suggested that if they could make an arrangement for baby-sitting by the daughter, he might be able to use her as a photography model for a video he wanted to make for a jet ski company. They made an appointment for Darby to meet D.L.'s daughter, and he came to their house. Darby again said his name was "Vance," and seemed to make photos of the daughter. Darby had her pose in the living room, then standing by a closet door, then sitting on the edge of a bed. She was always fully clothed, although she changed clothes, at Darby's request, so her appearance would not be the same in every photo. He also persuaded her to pose with a large teddy bear from her room.

During the camera session, D.L. left the room to answer a telephone call that lasted ten or fifteen minutes. She then went outside and noted the license plate number on Darby's car, because she had become suspicious of him. Darby had come to their house in a different car than one he had described to D.L. earlier, had no business cards, did not arrive with the backdrops or special lighting equipment he had discussed, and she thought the camera looked "junky." When she came back into the house, her daughter was "about in tears, crying" and said she didn't want to be a model anymore.

Darby told D.L. the daughter took offense when he was trying to adjust her bra strap to keep it from showing in the photo he was posing. D.L. asked Darby for the roll of film he had used, and he gave her one that she later discovered was blank. Darby had been seated on the floor, and when he stood, D.L. saw a wet spot at the crotch of his pants. He acted embarrassed and said he must have spilled his Coke there.

After Darby left, D.L. took the roll of film to a one-hour developer, where she was told it contained no photos. The daughter then told D.L. that, during the camera session, Darby had put his hand inside her shirt and touched her breast. D.L. was unable to find a listed telephone number for a photography studio by the name Darby had given them, so she called the police.

At the trial, the daughter testified that Darby had put his hand under her blouse and bra and touched her breast and under her skirt and inside her panties and touched her vagina. She also testified that when D.L. returned from the telephone call during the camera session, the daughter noticed a wet place on the front of Darby's pants, "like he had spilled something on them." The daughter testified that after she already had noticed the wet pants, Darby took a Coke can she had left on the floor, shook some Coke onto his pants, took a towel from the floor, and said he had spilled Coke on his pants.

Darby's first point of error asserts that his failure to testify was commented on by the prosecutor in closing argument.

At the trial's start, in opening statement to the jury, Darby's trial attorney (who is not his counsel on this appeal) told jurors: "and then after the State rests--and the Defense will call some witnesses--you will hear the other side of the story." [Emphasis added.]

At the trial's end, the sequence of closing arguments to the jury was: a prosecutor made the first part of the State's closing argument; followed by the defense attorney's closing argument for Darby; followed by a second prosecutor who made the concluding address to the jury. See TEX.CODE CRIM.PROC.ANN. art. 36.07 (Vernon 1981).

When the first prosecutor had finished his portion of the State's closing, Darby's trial attorney argued for the defense, telling jurors: "But there is--like I said, there's two sides to every coin." [Emphasis added.]

After Darby's closing, the second prosecutor made the concluding address to the jury and said: "[Defense Attorney] has told you that there's two sides to everything. Did you hear two sides to everything?" This drew the defense attorney's objection that the prosecutor was commenting on Darby's failure to testify, but the objection was overruled.

Continuing, the prosecutor told jurors:

What you heard from the witness stand is [complainant's] testimony that a man touched her ... in her vaginal area.... That is what you heard from the witness stand. [Emphasis added.]

On appeal, Darby contends that he was the only one who could have given testimony to refute the prosecution's witnesses, so the prosecutor's rhetorical question to the jury was an impermissible comment on Darby's failure to testify. He argues that comments on what the jurors had heard from the witness stand re-emphasized Darby's failure to testify. Darby relies on the established principle that a prosecutor's argument is improper if it calls the jury's attention to an absence of evidence that can be supplied only by the accused's testimony. Madden v. State, 799 S.W.2d 683, 700 (Tex.Crim.App.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1432, 113 L.Ed.2d 483 (1991); Cook v. State, 702 S.W.2d 597, 600 (Tex.Crim.App.1984).

Generally, article 38.08 of the Texas Code of Criminal Procedure, prohibits a prosecutor from alluding to or commenting on the fact that a criminal action defendant did not testify, but an exception may exist where the prosecutor's jury argument is only answering an earlier argument by the defense attorney. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988).

To be considered impermissible, an argument must leave jurors with the necessary implication that they have just heard a comment on the defendant's failure to testify. Swallow v. State, 829 S.W.2d 223, 225 (Tex.Crim.App.1992). An argument is not impermissible just because a jury might construe it as a comment on the failure to testify. Id. An appellate court's task is to determine whether, in light of a prosecutor's argument, a jury would naturally and necessarily consider the argument a comment on the accused's failure to testify. Montoya v. State, 744 S.W.2d 15, 35 (Tex.Crim.App.1987) (op. on reh'g), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 921 (1988); Curry v. State, 861 S.W.2d 479, 485-86 (Tex.App.--Fort Worth 1993, pet. ref'd.).

An indirect allusion to a defendant's failure to testify is not reversible error when invited by argument of the defendant, if the prosecutor confines the invited argument to the area of invitation. See Allen v. State, 693 S.W.2d 380, 386 (Tex.Crim.App.1984); Harrison v. State, 766 S.W.2d 600, 602 (Tex.App.--Fort Worth 1989, pet. ref'd). Relying on this principle, the State contends that in Darby's case, the prosecutor's rhetorical question and subsequent comment about the witness stand testimony were invited argument, and we agree. The record persuades us that the prosecutor's rhetorical question and the other complained-of comments made during his concluding address to the jury were invited by earlier arguments of Darby's trial attorney. We hold that the trial court did not commit reversible error by allowing the prosecutor's rhetoric and comments, and we overrule point of error number one.

Darby's second, third and fourth points of error concern evidentiary rulings related to State's exhibit 4, a magazine called "Titty Bear." Darby contends each ruling was an abuse of the trial judge's discretion.

His second point of error complains that the trial court abused its discretion by admitting the magazine into evidence, because the State had failed to connect the magazine to Darby. The third point asserts abuse of discretion because the evidence failed to establish Darby knew about a section in the magazine titled "Young Nookie," which contains sexually explicit photographs of a female posed with a teddy bear.

In addition to the specific issues contained in Darby's second and third points of error, we will also construe them as contentions that the complained-of evidence was factually insufficient to show his intent to commit the offense charged. Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996). This requires us to view all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict if it is so contrary to...