Anthony Lynn Johnson v. State

NO. 12-05-00367-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS ANTHONY LYNN JOHNSON, § APPEAL FROM THE 145TH APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § NACOGDOCHES COUNTY, TEXAS MEMORANDUM OPINION Anthony Lynn Johnson appeals his convictions for aggravated sexual assault of a child and indecency with a child, for which he was sentenced to fifty years for each conviction. In one issue, Appellant argues that the prosecuting attorney engaged in improper jury argument. We affirm. Background Appellant was charged by indictment with one count of aggravated sexual assault of a child and one count of indecency with a child. Appellant pleaded “not guilty,” and the matter proceeded to jury trial. Following the presentation of evidence, both parties rested and commenced their respective jury arguments. During the State’s jury argument, the prosecuting attorney stated as follows: But, let me tell you something else about P.J. She’s the bravest person in this courtroom. She’s braver than you and me. She’s braver than this defendant. She’s braver than any of these people out here because this young lady had the nerve to get on this stand and tell what happened to her. Appellant’s trial counsel objected that the prosecuting attorney was commenting on Appellant’s failure to testify. The trial court overruled the objection. Nonetheless, the prosecuting attorney addressed the objection stating, “Don’t get me wrong. I’m not talking about the defendant, because you’re instructed in this Charge that he has an absolute right not to testify, end of story. You can’t even consider that.” Ultimately, the jury found Appellant guilty as charged on both counts. Following a trial on punishment, the trial court sentenced Appellant to imprisonment for fifty years for each offense. This appeal followed. Comment on Failure to Testify In his sole issue, Appellant contends that the trial court erred in overruling his objection to the prosecuting attorney’s jury argument which, according to Appellant, amounted to an impermissible comment on Appellant’s failure to testify. There are four permissible areas of jury argument: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answers to argument of opposing counsel, and (4) pleas for law enforcement. Willis v. State, 785 S.W.2d 378, 384 (Tex. Crim. App. 1989). If an accused does not testify on his own behalf, the fact cannot be made the subject of comment by the prosecution. Stafford v. State, 578 S.W.2d 394, 395 (Tex. Crim. App. 1978). A comment on an accused’s failure to testify violates the accused’s state and federal constitutional privileges against self incrimination. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). Such a comment also runs afoul of Texas Code of Criminal Procedure, article 38.08, which prohibits the State from alluding to or commenting on an accused’s failure to testify. Roberson v. State, 100 S.W.3d 36, 40–41 (Tex. App.–Waco 2002, pet. ref’d). To violate the right against self incrimination, the offending language must be viewed from the jury’s standpoint, and the implication that the comment referred to the defendant’s failure to testify must be clear. Id. at 41 (citing Bustamante, 48 S.W.3d at 765). It is not sufficient that the language might be construed as an implied or indirect allusion. Id. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. Id. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character. Harm Analyisis Assuming arguendo that the trial court erroneously overruled Appellant’s objection, such error is subject to harm analysis. See Roberson, 100 S.W.3d at 43–44 (because improper comment on failure to testify impacts defendant’s Fifth Amendment right to remain silent, such error is one of constitutional magnitude). Texas Rule of Appellate Procedure 44.2(a) provides as follows: If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). In examining the record to assess harm, we consider (1) the source and nature of the error, (2) the extent to which the State emphasized the error, (3) the probable collateral implications of the error, (4) the weight a juror would probably place upon it, giving consideration to whether the record contains overwhelming evidence supporting the finding in question, and (5) whether declaring the error harmless would encourage the State to repeat it with impunity. See Roberson, 100 S.W.3d at 44. In the case at hand, the State was the source of the alleged error because the prosecutor chose to elaborate on her statement that P.J. was more brave than Appellant, among other persons she noted, because P.J. had the nerve to take the witness stand and tell what happened to her. The nature of the statement was direct in that it was arguably of such character that the jury would necessarily take it to be a comment on the Appellant’s failure to testify. See Cook v. State, 702 S.W.2d 597, 599 (Tex. Crim. App. 1984).1 Although the State argues that the statement was made in response to Appellant’s closing argument,2 we do not agree that Appellant’s jury argument raised a question as to P.J.’s level of bravery. The State did make a response to Appellant’s argument to the jury to give Appellant the same consideration as its own male family members. However, such a response can be differentiated from the statement at issue, which the prosecuting attorney initiated by saying, “[L]et me tell you something else about P.J.” From our review of Appellant’s argument in its entirety, we cannot locate any assertion by Appellant that P.J. is not brave by comparison to Appellant or any other statement that might invite such a response. Turning our analysis to the second factor, we note that the prosecuting attorney did not emphasize the error. To the contrary, even though the trial court overruled Appellant’s objection, the prosecuting attorney stated to the jury as follows: “Don’t get me wrong. I’m not talking about the defendant, because you’re instructed in this Charge that he has an absolute right not to testify, end of story. You can’t even consider that.” Thereafter, the prosecuting attorney continued to argue concerning P.J.’s level of bravery emphasizing instances where she told various people, including the jury, what had happened to her. We next consider the probable collateral implications of the prosecuting attorney’s comment. The comment was made in the context of an argument that P.J. was a brave person and that her level of courage for taking the stand to tell her story was greater than Appellant’s and others.’ Since Appellant did not testify, the possible collateral implication is that Appellant was a coward for his failure to testify. Yet, even following Appellant’s objection, the prosecuting attorney continued on the topic of P.J.’s bravery. Thus, any negative implication that Appellant was a coward for his failure to testify was not probable given the prosecuting attorney’s continued emphasis concerning P.J.’s level of courage. We next examine the weight the jury likely placed on the comment bearing in mind the strength of the State’s case against Appellant, i.e., whether the State presented overwhelming evidence supporting the verdict. The evidence reflects the commission of two egregious crimes. P.J., the victim, testified concerning two incidents involving Appellant. The first instance P.J. related involved Appellant rubbing her vagina as he helped her take a bath. The second instance involved Appellant removing P.J.’s pants and underwear and inserting his finger in her vagina, telling her, “[T]his is how it would feel.” P.J.’s testimony was bolstered by the testimony offered by her therapist, Theresa Fusaro, to whom P.J. made an outcry statement. Testimony offered by P.J.’s mother and grandmother also offer some support of P.J.’s account of the acts perpetrated against her by Appellant. Conversely, P.J. admitted that she had exaggerated certain facts that occurred subsequent to the second act she alleged Appellant committed against her so her problems with Appellant would “get taken care of faster.” But P.J. further asserted that her statements concerning what Appellant had done to her were true. We finally consider whether declaring the error harmless would encourage the State to repeat it with impunity. The record indicates that even after the trial court had overruled Appellant’s objection, the prosecuting attorney not only retreated from the statement by refocusing her argument on P.J.’s bravery, but also personally admonished the jury that they could not consider that fact even though the trial court had overruled Appellant’s objection. In sum, although the State was the source of this alleged error, it sought to deemphasize its statement by focusing on P.J.’s level of bravery. Furthermore, the prosecuting attorney even chose to admonish the jury that it could not consider that Appellant had not testified. A potential negative implication that Appellant was a coward for his failure to testify was not probable given the prosecuting attorney’s continued emphasis concerning P.J.’s level of courage. The evidence supporting Appellant’s convictions was very strong and largely unimpeached. No controverting evidence was put on in Appellant’s defense. We are confident that a juror would not have placed any conceivable weight on the prosecuting attorney’s statement in light of the circumstances at hand and considering the evidence presented supporting Appellant’s convictions. Finally, we cannot conclude that our holding that such error, if any, is harmless would encourage the State to repeat it with impunity. Our analysis of the above factors is specific to the facts of the instant case. We emphasize that under a different set of circumstances, such assumed error, might not be harmless. Considering the aforementioned factors in light of the record in the instant case, we hold that the error of which Appellant complains, if any existed, was harmless. Appellant’s sole issue is overruled. Disposition Having overruled Appellant’s sole issue, we affirm the trial court’s judgment. BRIAN HOYLE Justice Opinion delivered October 25, 2006. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 1 An indirect comment on the accused’s failure to testify often arises in a scenario where the prosecuting attorney calls for the denial of an assertion of fact or for contradicting evidence that only the defendant is in a position to offer. See, e.g., Henson v. State, 683 S.W.2d 702, 704–05 (Tex. Crim. App. 1984). 2 Specifically, the State argues that the statement in question was a response to the following portion of Appellant’s jury argument: Y’all have my client, Mr. Anthony Johnson’s life, in your hands. I would ask you to do this for me. Y’all all have male family members, whether it [sic] a boy, a son, a grandson. I ask you to give this man the same consideration that you would expect another jury in another place to give to one of your loved ones if they were charged with this same offense.