Steele, Billy Ray v. State

AFFIRM; Opinion issued January 18, 2013.

In The Quiirt 01 FiftIi 1hitrict of ixai it tkttta No. 05-11-01140-CR

BILLY RAY STEELE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F09-73160-Y

MEMORANDUM OPINION Before Justices Francis, Murphy, and Evans 1 Opinion By Justice Murphy

The sole issue in this appeal from a jury conviction for unauthorized use of a motor vehicle is whether the trial court erred by overruling Billy Ray Steele’s objection to what he claims was improper punishment argument by the State. We affirm.

Background

On the evening of December 11, 2009 and into the early morning hours the next day, Steele and two others drove around to three different car dealerships “looking for a car to get into.” At the third dealership, Steele found a 2002 Dodge Ram pickup truck. He broke into the truck, used a

The Honorable Joseph Morris, Retired Justice, was a member of the Panel at the time this case was submitted. Due to his retirement from this t Court on December31, 2012, he did not participate in deciding the case. He was replaced on the panel by Justice David Evans See TEx. R. App. P. 41.1(a).

screwdriver and hammer to start it. drove the truck through the gate ui the dealership, arid left the lot. [he others eventually joined Steele in the truck, and the v “rode aroimd lou a little bit.’’ On the morning of December I 2. they ended up in a Wal-Mart parking lot where they were “cornered by the owners ol the dealership. The lice arrived and arrested them.

Steele was charged by indictment with unauthorized use of a motor vehicle, a state jail lelony with a punishment range of confinement for I So days to two years and an optional fine not to exceed

$10,000. See TEx. PENAL CODE ANN. § 12.35(a), (h) (West Supp. 2012); Id. § 31,07 (West 2011). The indictment also contained two enhancement paragraphs, alleging Steele had been convicted of

two prior felony of lenses in 2004—for credit card abuse and burglary of a building. Steele pleaded not guilty, and the jury found him guilty as charged.

Steele pleaded true at the punishment hearing to both enhancement allegations, which increased his punishment range to that of a third degree felony, confinement for two to ten years, and an optional fine of tip to $ 10,000. See Id. § 1 2.34 (West 201 1): Id. § 1 2.425(a) (West Supp. 201 2). The State also established Steele had been convicted of several additional offenses, including failure to identify, theft, burglary of a motor vehicle, and burglary of a habitation. In closing argument, the prosecutor asked for the maximum punishment of ten years and argued that Steele was a “career criminal.” Steele’s counsel responded by arguing that after Steele’s felony convictions in 2004, he only “was in very little petty stuff. . . Nothing to indicate that he Iwasi a career criminal.” He also asked the jury to be reasonable and not give Steele an excessive punishment. The jury sentenced Steele to ten years in prison.

Discussion

Steele contends the prosecutor made certain statements during argument in the punishment phase of trial that improperly struck at him over the shoulders of his counsel. His complaint stems

—2— from the followin comments made by the prosecutor in his rebuttal argument:

But tins, a this point in the trial. Iiks, certainly they can sit and do nothing. You heard about it. I mean on re looklin! at 10. With seven convictions, you’re looking at 10. [here’s no doubt ab ut that. Right? ‘you can call grandma.

Grandma would say this man is actually worth not giving 10 years to. l3ut von can’t speculate on that now. its not in here.

Steele’s counsel objected “to Ithe prosecutorl saying to call on somebody that he could call if he wanted them here as a witness” and asserted “that’s going through his attorney and not a fair argument” The trial court clarified that counsel’s objection was that the prosecutor was “Isitriking over the shoulder of jdefense counsel to reach the defendant” and overruled the objection. The prosecutor continued:

Because 1 (10111 know about you. but I guarantee you I would find everybody in the world I could have to say something nice about inc and I would call them up here for you. the members of the jury. to give him an appropriate sentence. Does that tell you something? Does that tell you about a person that maybe has seven different convictions?

Steele argues the prosecutors comments imply the jury should assess the maximum ten-year sentence based on defense counsel’s failure to call witnesses to testify that he deserved a lesser sentence. He claims the comments were inflammatory and harmed him because he received the maximum sentence based “on insinuation that even his own grandmother would have nothing to say in mitigation of punishment”

Properjury argument generally falls within one of four areas: (1) summation of the evidence; (2) reasonable deductions from the evidence: (3) answers to opposing counsel’s argument; and (4) plea for law enforcement. See Freeman v. State. 340 S.W.3d 717, 727 (Tex. Crim. App. 2011); Brown v. State. 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); see also Albiar v. Suite, 739 S.W.2d 360, 362 (Tex. Crim. App. 1987) (noting “a response to the argument of opposing counsel or invited

—3— argument” as appropriate category of argument), We review a trial court’s ruling on an objection to an improper jury argument for an abuse of discretion. See Lemon v. State, 298 S.W.3d 705, 707 (Tex, App.—San Antonio 2009, pet. ref’d); York v. State, 258 S.W.3d 712, 717 (Tex, App—We3 2008, pet. ref’d).

“When a prosecutor makes uninvited and unsubstantiated accusations of improper conduct directed toward a defendant’s attorney, in an attempt to prejudice the jury against the defendant, courts refer to this as striking a defendant over the shoulders of his counsel.” Phillips v. State, 130 S.W.3d 343, 355 (Tex. App.—Houston [14th Dist.j 2004, pet. ref’d) (op. on reh’g). A prosecutor risks improperly striking at a defendant over the shoulders of counsel when the argument refers to defense counsel personally and when the argument explicitly impugns defense counsel’s character. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1988) (op. on reh’g); Davis v. State, 268 S.W.3d 683, 712 (Tex. App.—Fort Worth 2008, pet. ref’d). For example, a prosecutor impermissibly strikes at a defendant over counsel’s shoulders when the prosecutor argues that defense counsel manufactured evidence, suborned perjury, accepted stolen money, or represented criminals. See Phillips, 130 S.W.3d at 355; Washington v. State, 822 S,W.2d 110, 119 (Tex. App.—Waco 1991), rev’d on other grounds, 856 S.W.2d 184 (Tex. Crim. App. 1993); see also Fuentes v. State, 664 S,W.2d 333, 335 (Tex. Crim. App. [Panel OpI 1984) (prosecutor may not accuse defense counsel of bad faith or insincerity or discuss counsel’s “usual antics”); Anderson v. State, 525 S.W.2d 20, 22 (Tex. Crim. App. 1975) (arguments that criticize defense counsel, including that defense counsel “did not have guts enough” to argue innocence of his client, and request for more time to argue because of defense counsel’s “frivolous objections” were improper). This prohibition protects the defendant from improper prosecutorial character attacks on defense counsel. Davis. 268 S.W.3d at 713.

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We conclude the complainedof arguments by the prosecutor did not impermissibly strike at Steele over the shoulders of his counsel. The prosecutor did not attack counsel’s character or criticize his defense of Steele. See Mosley, 983 S,W,2d at 259. Nor did the prosecutor accuse counsel of any wrongdoing or impropriety. Id.; Fuentes, 664 S.W.2d at 335; Phillips, 130 S.W.3d at 355. Rather, the prosecutor’s argument was a proper comment on Steele’s failure to call favorable witnesses, such as his grandmother, as character witnesses, See, e.g., Pope r. State, 207 S.W.3d 352, 365 & n.5 1 (Tex. Crim. App. 20)6) (noting that “a party may always comment on the fact that the opponent failed to call an available witness and then argue ‘Don’t you know, if Mr. X had anything favorable to say, my opponent would have called him”); Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995) (argument that refers to defendant’s failure to produce evidence other than own testimony is proper); ‘aron v. State, 162 S.W.3d 614,618 (Tex. App.—Houston [14th Dist.I

2005, pet. ref’ d) (prosecutor may comment on defendant’s failure to bring favorable evidence; “Ii If there is something out there that is going to exonerate you, you want to make it known”). In the

punishment phase of a noncapital case, the practice of commenting on the failure of an accused to present any witnesses or evidence to testify about his character, reputation, or other relevant matters has long been sanctioned. See Thomas v. State, 638 S.W.2d 481, 483 (Tex. Crim. App. 1982); Shaw v. State, 826 S.W.2d 763, 767 (Tex. App.—Fort Worth 1992, pet. ref’d); see also Alhiar, 739 S.W.2d at 362—63 (prosecutor may comment in argument on failure of defendant to call competent witness when such witness is available to testify).

The prosecutor’s remarks at issue in this case amounted to no more than a reference to Steele’s failure to call a character witness and did not strike at Steele over his defense counsel’s shoulders. Because such comments were proper, we conclude the trial court did not abuse its discretion in overruling Steele’s objection.

—5— Accordingly, we overrule Steele’s sole issue and affirm the trial court’s judgment

4M4 JUSTI

Do Not Publish Tn. R. An. P.47

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JUDGMENT BILLY RAY STEELE. Appellant Appeal from the Criminal District Court No. 7 of Dallas County, Texas, (Tr.CLNo. FO9 No. ()5 11 () 11 4OCR 73 I 6OY). Opinion delivered hy Justice Murphy. TIlE STM’E (iF TEXAS, Appelice Justices Francis and Evans participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered January 18, 2013.

MARY MiRPHY “ JUSTICE