Phillips v. State
| Decision Date | 28 August 2018 |
| Docket Number | NO. 14-17-00510-CR,14-17-00510-CR |
| Parties | SHARON DENISE PHILLIPS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 339th District Court Harris County, Texas
Appellant Sharon Denise Phillips was found guilty by a jury of murder and sentenced to confinement in prison for fifty-five years. On appeal, appellant contends that the prosecutor's explanation of reasonable doubt during voir dire suggested a level of certainty lower than due process requires, and that the trial court erred in sustaining an objection to defense counsel's closing argument at the punishment stage. We affirm.
Appellant was involved in a volatile relationship with the complainant, Brandon Andrews. One evening in November 2014, Andrews drove to a gas station with his father and young daughter. Appellant then arrived at the gas station, approached Andrews while holding a knife, and began arguing with him. Appellant stabbed Andrews four times in the chest and once in the back, causing his death. Some of the altercation was captured on video surveillance, and some was seen by an eyewitness who testified at trial and identified appellant. The jury refused to find that appellant acted in self-defense and found appellant guilty of murder.
In her first issue, appellant contends that "[t]he prosecutor's explanation of reasonable doubt during voir dire suggested a level of certainty lower than due process of law requires, illustrating why Texas should return to a standard definition." The State responds that appellant waived this issue by failing to timely object to the prosecutor's explanation of reasonable doubt; in any event, the prosecutor's explanation of the State's burden of proof did not undermine appellant's right to a finding of guilt beyond a reasonable doubt.
During voir dire, the prosecutor discussed the meaning of "reasonable doubt" with the jury panel:
The Judge kept saying the words "beyond a reasonable doubt." Have y'all heard that term a lot, especially on TV shows? Now, there is no definition of beyond a reasonable doubt. Juror No. 9, beyond a reasonable doubt means something completely different to you than it does to Juror No. 10. It's whether you believe the State of Texas proved their case beyond a reasonable doubt. It's whether you have a reasonable doubt or not. It's a feeling inside. Did the State prove their case beyond a reasonable doubt?
Additionally, the prosecutor encouraged the venirepersons to apply common senseby using as an example a popular game show in which contestants try to fill in enough blanks with letters to guess the words in a phrase:
We weren't [at the scene of the crime]. You have to witness the case yourself to believe something beyond all doubt. So [for] those blanks, use your common sense; use your reasonable inferences.
Appellant made no contemporaneous objection to the prosecutor's explanation.
As an initial matter, the State argues that appellant's failure to object waived her complaint that the prosecutor's explanation of the State's burden of proof violated her right to due process. Generally, to preserve a complaint for appellate review, the complaining party is required to make a "timely request, objection, or motion" before the trial court. Tex. R. App. P. 33.1(a)(1); Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006). Almost every right, both constitutional and statutory, may be forfeited by the failure to object. Glover v. State, 496 S.W.3d 812, 816 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd); see Mendez v. State, 138 S.W.3d 334, 340-41 (Tex. Crim. App. 2004). Whether an appellant is required to make a contemporaneous objection to preserve error turns on the nature of the right allegedly infringed. See Proenza, 541 S.W.3d 786, 796 (Tex. Crim. App. 2017); Mendez, 138 S.W.3d at 341-42.
Appellant acknowledges that defense counsel failed to timely object to the prosecutor's explanation of reasonable doubt, but counters that the recent decision in Proenza supports a conclusion that a prosecutor's duty not to misrepresent the State's burden of proof creates a right that is waivable only, and therefore a timely objection to the violation of that duty is not required to preserve her appellate complaint. See 541 S.W.3d 786.
In Proenza, the Court of Criminal Appeals applied the three-categoryframework of litigants' rights established in Marin v. State1 to determine whether a defendant was required to object to at trial to preserve a complaint that the trial judge violated article 38.05 of the Texas Code of Criminal Procedure by improperly commenting on the weight of the evidence. See id. at 797-800. The Proenza court concluded that the mandatory text of the statute and its important role in protecting the perception of the trial judge's impartiality in front of the jury created a right that was waivable only, meaning a right that cannot be forfeited by a defendant's inaction. See id. at 800-01. Because the record reflected that the defendant did not affirmatively waive his right to the trial judge's compliance with article 38.05, the court held that the defendant's complaint could be raised for the first time on appeal. Id. at 801.
Appellant argues that as a logical extension of Proenza, this court should hold that a prosecutor has a similar duty to not misrepresent the State's burden of proof which cannot be forfeited by a defendant's failure to object. According to appellant, prosecutors should be held to a high standard of accuracy when they attempt to explain the law because "that may be the explanation which sticks with the jury," especially since the court's charge does not include a reasonable-doubt instruction.2Appellant also asserts that because the charge contains no definition of proof "beyond a reasonable doubt," the prosecutor's explanation of the State's burden of proof may act as an instruction, and therefore a prosecutor's erroneous de facto instruction would be charge error sufficient to constitute egregious harm. See Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh'g).
But appellant cites no legal authority to support her contention that a prosecutor has a duty to refrain from misrepresenting the State's burden of proof comparable to a trial court's statutory duty to refrain from commenting on the weight of the evidence. Likewise, appellant cites no authority supporting her claim that a prosecutor's comments during voir dire equate to charge error. Nor does appellant attempt to apply the Marin framework discussed in Proenza to explain why a violation of the alleged duty creates a right that is absolute or at least waivable-only, rather than forfeitable by inaction.
It is incumbent upon appellant to cite specific legal authority and to provide legal arguments based on that authority. See Tex. R. App. P. 38.1(i); Bohannan v. State, 546 S.W.3d 166, 179-80 (Tex. Crim. App. 2017). We will not make novel legal arguments for her. Bohannan, 546 S.W.3d at 180. Accordingly, we decline to address appellant's argument because it is inadequately briefed.3 See Arrellano v. State, ___ S.W.___, No. 01-15-00814-CR, 2018 WL 2727737, at *5 (Tex. App.—Houston [1st Dist.] June 7, 2018, pet. filed) ().
We overrule appellant's first issue.
In her second issue, appellant contends that the trial court erred in sustaining an objection to defense counsel's closing argument in the punishment phase. Appellant argues that the State called Andrews's sister as a witness to show "victim impact" by discussing Andrews's good qualities and the trial court allowed defense counsel to cross-examine her to show that the evidence presented during direct examination was false or misleading. Once this impeachment evidence was admitted, appellant argues, defense counsel was entitled to offer jury arguments based on that evidence, and the trial judge erred in cutting off this line of argument. The State responds that the trial court did not abuse its discretion in precluding defense counsel from improperly using closing argument as a vehicle to place evidence outside the record before the jury.
In the punishment phase, Andrews's sister gave her unsolicited opinion that Andrews was a "good person." On cross-examination, defense counsel attempted to impeach Andrews's sister's opinion by asking a series of "have you heard" questions about various reports of alleged specific instances of conduct by Andrews. The questions inquired into whether Andrews's sister had heard reports that Andrews had attacked different women on several occasions, fired a pistol at someone, and committed a robbery. Andrews's sister denied having knowledge of the bulk of the alleged conduct.4 No evidence was introduced establishing that Andrews committedany of the alleged conduct.
During closing argument, defense counsel sought to remind the jury of the alleged specific instances of conduct he listed during cross-examination of Andrews's sister. The prosecutor objected that defense counsel's jury argument was improper because the alleged conduct had not been proved beyond a reasonable doubt. The trial court sustained the State's objection.
At the end of closing arguments and outside the presence of the jury, defense counsel argued that he was denied the opportunity to remind the jury of the "have you heard" questions that he had posed to Andrews's sister. Defense counsel also made an offer of proof, reciting specifically what he would have asked or argued to the jury, including a list of seven alleged specific instances of conduct. The prosecutor again responded that the argument would be improper because none of the instances of conduct were proven beyond a reasonable doubt but were...
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