Craig Barr v. State

barr TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-95-00631-CR Craig Barr, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 0951769, HONORABLE LARRY FULLER, JUDGE PRESIDING Craig Barr was convicted of aggravated sexual assault of a child and indecency with a child by contact, Tex. Penal Code Ann. §§ 22.021, 21.11 (West 1994), and received sentences of 55 years and 20 years. He challenges his conviction in four points of error, claiming that: (1) the State's closing argument urged the jury to consider appellant's prior convictions and "bad acts" as evidence of guilt; (2) the State's closing argument attacked defense counsel's efforts to represent appellant and referred to matters not in evidence, rendering the argument as a whole manifestly improper; (3) the State's cross-examination of appellant improperly concerned details of appellant's probation and violation of its terms; and (4) the supplemental instruction to the jury put before the jurors matters which improperly affected their deliberations. We will affirm the trial court's judgment. BACKGROUND The eight-year-old complainant lived with his mother, Sheryl Barr (1) and his younger brother at the home of Bennie Barr, appellant's mother. Sheryl Barr's boyfriend, Ivory Carr, and appellant were also among the twelve people living there. Sheryl Barr testified that in February 1995, complainant told her that appellant had had sex with him about ten times. She reported the abuse to the Children's Advocacy Center, and a subsequent medical exam revealed evidence of anal intercourse. Ms. Barr and her children moved into a different house about a week after the complainant's disclosure. At trial, appellant testified to a past felony conviction, two misdemeanor theft convictions, and recent convictions for organized criminal activity and theft for which he was on probation. He denied perpetrating any sexual acts on the complainant, however. On cross-examination, he recounted participating in carjackings and robberies as part of his gang affiliation; the defense raised no objection to this line of questioning. Appellant also admitted to watching his brother beat Sheryl Barr while she was pregnant. He asserted that because he never helped Sheryl, she was framing him for complainant's abuse and that it was really Ivory Carr who had abused the complainant. In the course of deliberations, the jury sent out three notes indicating difficulty reaching a verdict. After eight and a half hours of deliberation and the third note, the judge gave the jury a supplemental instruction; two hours and ten minutes later the jury convicted him of both offenses for which he was tried. DISCUSSION Appellant's first two points of error concern the State's closing argument. He asserts in his first point that the trial court erred in overruling his objection to the State's closing argument because it urged the jury to consider appellant's prior convictions and "bad acts" as evidence of guilt. There are four areas of proper jury argument: summary of the evidence, reasonable deductions from the evidence, response to arguments of opposing counsel, and a plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). When reviewing the propriety of a jury argument, an appellate court can find reversible error only if, in light of the record as a whole, the argument is extreme or manifestly improper, it violates a statute, or it injects new and harmful facts into the trial. Cannon v. State, 668 S.W.2d 401, 404 (Tex. Crim. App. 1984). The State framed its closing argument in terms of credibility of the witnesses. The prosecutor reminded the jury of appellant's past record and gang activity, suggesting that there was some irony in appellant's honesty regarding his past stealing and carjacking and his lack of honesty regarding this offense. Almost two pages of the statement of facts recite appellant's own references to his gang activity, so the prosecutor's remarks may have been unnecessary to refresh the jury's memory. The argument did not introduce any new facts and was not extreme in challenging appellant's credibility. The argument was a permissible response to the defense strategy: if I've been honest about my past misdeeds you should believe me when I say I didn't commit this crime. When appellant finally objected on the ground that these arguments were an improper invitation to the jury to consider other offenses in establishing guilt, the State immediately made a remedial statement to the jury, "I don't want you to consider those [other crimes]. But you can consider those for credibility of that man just like any other witness in this case." It is reversible error to argue to the jury that evidence of a prior conviction admitted on the issue of a defendant's credibility is evidence of the defendant's guilt. Sanchez v. State, 591 S.W.2d 500, 502 (Tex. Crim. App. 1980). In this case, however, the State used evidence of appellant's prior convictions and "bad acts" to argue against his credibility. This use of properly admitted evidence is appropriate. Ortega v. State, 651 S.W.2d 278, 282 (Tex. App.--Fort Worth 1983, pet. ref'd); see Bush v. State, 642 S.W.2d 787, 789 (Tex. Crim. App. 1983). We therefore overrule appellant's first point of error. In his second point of error appellant asserts that the State attacked defense counsel's attempts to defend his client and referred to matters not in evidence. Specifically, appellant complains of the State's comment that defense counsel had been "trashing" Sheryl Barr and the State's claim that this was a "common defense tactic in these type of cases." Defense counsel objected twice on the grounds that the State was attacking defense counsel and that what is common in other jury trials was not part of the record here. The court overruled both objections. On appeal, appellant argues that these comments rendered the argument improper and that the trial court erred in overruling his objections. Appellant correctly observes that the State may not attack the lawful efforts of the defense counsel to represent his client. The cases he cites to support his argument that the prosecutor improperly attacked him are distinguishable from the case before us. In Cook v. State, 537 S.W.2d 258 (Tex. Crim. App. 1976), the State repeatedly challenged the defense's choice to sever the trials of the two defendants, saying it was "trickery" and an effort to let each defendant blame the other. Id. at 260. The trial court ordered the jury to disregard the comments but denied defendant's motion for a mistrial. Id. at 260-61. The Court of Criminal Appeals reversed on the ground that the prosecutor's version of the severance was wholly outside the record and was clearly intended to inflame the jury. Id. at 261. Similarly, in Lopez v. State, 705 S.W.2d 296 (Tex. App.--San Antonio 1986, no pet.), the appellate court ruled that it was manifestly improper for the State to argue to the jury that "the entire strategy of the defense counsel [had been] to keep as much evidence from you as possible." Id. at 298. In both Cook and Lopez, the improper arguments were directed at the actions of defense counsel and injected prejudice into the proceedings. Cook, 537 S.W.2d at 261; Lopez, 705 S.W.2d at 298. In the case before us, however, appellant asserted that Sheryl Barr had mental problems and that she was framing appellant because she did not want the real perpetrator, Ivory Carr, to go to jail because he provided her financial support. In this context, the State was asking the jury to recognize that it is not uncommon for a defendant to accuse someone else of the offense in question. This does not rise to the level of impropriety seen in Cook or Lopez and there was no error in overruling appellant's objection. Appellant's second point of error is overruled. In his third point of error, appellant contends that the trial court erred in overruling his objections to the State's cross-examination concerning details of his probation and his violation of its terms. Appellant objected twice during this line of questioning. After the first objection, the witness did not answer and the State moved on to a different question. In such an instance there is no error. King v. State, 631 S.W.2d 486, 492 n.15 (Tex. Crim. App.), cert. denied, 459 U.S. 928 (1982). Appellant's second objection, that "[a]ll this is irrelevant to the charge," came after the State's question had already been answered. This was not a timely objection and did not preserve error for review. Id.; Robinson v. State 728 S.W.2d 858, 860 (Tex. App.--Austin 1987, no pet.). Accordingly, we overrule appellant's third point of error. Finally, appellant argues that the trial court erred in overruling appellant's objection to the supplemental instruction to the jury because it put before the jurors matters which improperly affected their deliberations. This instruction, known as an Allen charge, was given to the jury to help resolve their difficulty in reaching a unanimous decision. The purpose of these charges is to remind the jurors of their duty to deliberate with open minds and to decide the case if they can conscientiously do so. Allen v. United States, 164 U.S. 492, 501 (1896); Duc Vu v. State, 750 S.W.2d 8, 9 (Tex. App.--Texarkana 1988, pet. ref'd). The instruction is reversible error if found to be harmfully coercive. Calicult v. State, 503 S.W.2d 574, 576 (Tex. Crim. App. 1974); Duc Vu, 750 S.W.2d at 9. In evaluating the coerciveness of an Allen charge, courts tend to approve charges that include the cautionary instruction that each juror should adhere to his or her individual convictions. Duc Vu, 750 S.W.2d at 9; Griffith v. State, 686 S.W.2d 331, 333 (Tex. App.--Houston [1st Dist.] 1985, no pet.). The Allen charge given in this case was: I have your note that you are deadlocked. In the interest of justice if you could end this litigation by your verdict, you should do so. I don't mean that any individual juror should yield his or her own conscience or positive conviction, but I do mean that when you are in the jury room you should discuss this matter carefully, listen to each other and try if you can to reach a conclusion on the question. It is your duty as a juror to keep your mind open and free to every reasonable argument that may be presented by your fellow jurors so that this jury may arrive at a verdict that justly answers the consciences of the individuals making up this jury. You should not have any pride of opinion and should avoid hastily forming or expressing an opinion. At the same time you should not surrender any conscientious views found on the evidence unless convinced of your error by your fellow jurors. You realize that if you fail to reach a verdict, this case may have to be tried before another jury, then all our time will have been wasted. And there is no reason to believe that another jury would be any smarter than you. So accordingly, I ask that you return to consider your deliberations. This instruction, viewed as a whole, reminded the jurors of their duty to render a verdict but also directed that they vote their consciences. Appellant argues that the reference to time being wasted and to other juries not being any more capable than this one put pressure on the jury to render a verdict. He cites two cases which demonstrate unacceptable pressure exerted by a judge. In Womack v. State, 35 S.W.2d 723 (Tex. Crim. App. 1931), the judge asked the jury to identify the one hold-out for the purpose of asking him if there was a possibility of his changing his vote. Id. at 724. When the jurors did not respond, the judge directed the jury to return to the jury room and take an open ballot to identify the hold-out. Id. Additionally, he told them that his goal was to prevent a mistrial because it would cost the county money. Id. Within five minutes the jury had returned with a unanimous verdict. Id. Similarly, in Golden v. State, 232 S.W. 813 (Tex. Crim. App. 1921), the judge reminded the deadlocked jury that it "is expensive to try these cases and the facts being short and clear in this case, the court cannot see why you . . . cannot reach a verdict." Id. at 814. He then asked the two jurors who were the minority vote if they would be able to agree to a verdict; again, within five minutes of the judge's comments, the jury returned with a unanimous verdict. Id. The case before us is distinguishable from Womack and Golden; the judge did not exert pressure on the individual jurors identified as hold-outs. The jury sent out three notes indicating deadlock over the course of eight and a half hours of deliberations. After receiving the Allen charge addressed to the jury as a whole, the jurors deliberated another two hours and ten minutes before returning a unanimous verdict. There is nothing to indicate the individual jurors felt pressured by the charge given; unlike the jury in Womack and Golden this jury did not rush to reach a decision to please the judge minutes after receiving the charge. The object of the jury system is to achieve unanimity by comparing views and arguing. Allen, 164 U.S. at 501. The court's reminder that another jury would have to decide the case if this one did not was a statement of fact which had no impermissible coercive effect. We find that the Allen charge given was proper and overrule appellant's fourth point of error. CONCLUSION We conclude that the trial court properly overruled appellant's objections to the State's closing argument and its use of evidence regarding appellant's past convictions and bad acts. We decline to review the State's cross-examination of appellant regarding the conditions of his probation on the grounds that error was not properly preserved. And, finally, we conclude that the Allen charge given to the jury was proper. For these reasons we affirm the trial court's judgment. Bea Ann Smith, Justice Before Justices Powers, Jones and B. A. Smith Affirmed Filed: May 1, 1996 Do Not Publish 1. Sheryl Barr is the sister-in-law of appellant. the question. It is your duty as a juror to keep your mind open and free to every reasonable argument that may be presented by your fellow jurors so that this jury may arrive at a verdict that justly answers the consciences of the individuals making up this jury. You should not have any pride of opinion and should avoid hastily forming or expressing an opinion. At the same time you should not surrender any conscientious views found on the evidence unless convinced of your error by your fellow jurors. You realize that if you fail to reach a verdict, this case may have to be tried before another jury, then all our time will have been wasted. And there is no reason to believe that another jury would be any smarter than you. So accordingly, I ask that you return to consider your deliberations. This instruction, viewed as a whole, reminded the jurors of their duty to render a verdict but also directed that they vote their consciences. Appellant argues that the reference to time being wasted and to other juries not being any more capable than this one put pressure on the jury to render a verdict. He cites two cases which demonstrate unacceptable pressure exerted by a judge. In Womack v. State, 35 S.W.2d 723 (Tex. Crim. App. 1931), the judge asked the jury to identify the one hold-out for the purpose of asking him if there was a possibility of his changing his vote. Id. at 724. When the jurors did not respond, the judge directed the jury to return to the jury room and take an open ballot to identify the hold-out. Id.