## NO. 12

- 21

- 00226

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

MARCUS LAMONT ALLEN , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPE AL FROM THE 241ST

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION Marcus Lamont Allen appea ls his conviction for felony assault family violence. In two issues, Appellant argues that the trial court abused its discretion in his trial on punishment by overruling his objection to a portion of the State ’ s jury argument and in admi tting two exhibits
over h is objection

. We reverse and remand

.

B ACKGROUND Appellant was charged by indictment with felony assault family violence. 1 The
indict ment further alleged that Appellant previously was convicted of evading arrest with a
vehicle

. Appellant ple aded “not guilty ” to the charge and pleaded “ not true ” to the jurisdictional enhancement of assault family violence under Texas Penal Code, Section 22.01(b)(2)(A). T h e matter proceeded t o a jury trial. T he jury found Appellant “guilty” as charged and the mat ter proceeded to a trial on punishment, at which Appellant pleaded “ true ” to the enhancement allegation of evading arrest with a vehicle. Foll owing the presenta t i on of evidence and argument of counsel, the jury assessed Appellant ’ s punishment at imprisonm ent for twenty years

. The tri al court sentenced Appellant accordingly, and t his appeal followed.

1 See T EX

. P ENAL C ODE A NN

. § 22.01(b )(2)(A) (West Supp. 2022).2 P ROSECUTO RIAL S TATEMENTS D URING J U RY A RGUMEN T In his first issue, Appellant argues that the trial court abused its discretion in his trial on punishment by overruling his objection t o a portion of the State ’ s jury argument because such argument amounted to a comme nt on his exercis e of his right to a jury trial. Standard of Review and Governing Law
We review the trial court ’ s ruling on an objection to jury ar gument for abuse of
discretion. Smith v. State , 483 S.W.3d 648, 657 (Tex. App.

– Houston [14th Dist.] 2015 , no pet.); Nzewi v. State , 359 S.W.3d 829, 841 (Tex. App.

– Houston [14th Dist.] 2012, pet. ref ’ d). We analyze the argument in light of the entire reco rd and not upon the argument ’ s isolated

occurren ce. See DeLarue v. State , 102 S.W.3d 388, 405 (Tex. App.

– Houston [14th Dist.] 2003, pet. ref ’ d ). Proper jury argument (1) summarize s the evidence , (2) make s reasonable deductions
from the evidence , (3) resp ond s to arguments of opposing counsel , or (4) pl ead s for law
enforcement. See Wesbrook v. State , 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). E ven when an argument exceeds the permissible bounds of these approved areas, it will not constitute
reversible er ror unless, in light of the record as a whole, it is extreme or manifestly improper,
violat es a mandatory statute, or injects new fac ts harmfu l to the accused into the trial proceeding. Id. The remarks must have been a willful and calculated effort on th e part of the State to deprive appellant of a fair and impartial trial. Id.
The Parties ’ Arguments In the guilt

- innocence phase of trial , i n i ts opening jury argument, the State argued , in

per tinent part, as follows:

You are also going to get to hear fro m a crime sc ene investigator, who is a specialist in fingerprints. You ’ ve just heard the defendant stand up and you heard the defendant tell y ou that the prior that I read in the indictment was not true. As I explained to y ’ all in voir dire yesterday, in order for a n assault that ’ s just an assault to be a felony, there has to be a prior. So by virtue of him pleading not true, you will hear fro m a crime scene detective who is going to tell you that he looked at the judgment and the sentence of that, he ’ s compared it to documents that he has access to linked specifically to this defendant, and that he can definitively tell you it is one in the sa me , Marcus Allen, that has been convicted. I don ’ t get to tell you why people do what they do, but I will tell y ou this, rem ember yesterday I told you no matter what the evidence is, no matter what the situation is, a defendant has an absolute right to tr ia l. And they have an absolute right to do what they want to do at trial as long as it ’ s within the law.

After the presenta tion of evidence, in its initial closing argument, the State asserted to the jury,3 And, really, also your deliberation is kind of a mini two

- step process, because not only are we talking about the events of May 17th of 2020, you ’ ve also got to find beyo nd a reasonable doubt that he was, in fact, convicted of family violence before. So what ’ s the evidence to that? Well, you heard T r av is Breazeale. He ’ s got over 20 years as a peace officer and ten

- plus years as a criminal specialist; testifi ed to you ab out the fingerprint process and judgments and how you know. And in State ’ s 2, you even have this prior judgment. And Investigator B re azeale told you how he rolled the defendant ’ s fingerprints himself, confirmed that was Marcus Allen, confirme d some of th e other specific identifiers.
This judgment doesn ’ t have fingerprints, but he was able to match it to Marcus Allen through name, t hrough birth date, through that PID number that he said matched another one that he reviewed that he confirmed that did hav e fingerprints. So you ’ ve heard definitive expert testimony that this, in fact, is the same man.

And that ’ s important becaus e that ’ s what makes this a felony, right? Mr. Chamness explained it to you. If you commit assault family violence wi th a prior c onviction of assault family violence, that ’ s what makes it a felony.

In response, Appellant argued to the jury as follows:

It ’ s just like the right to a jury trial. You have a right to a jury trial on every element of the case. The State will say

-- get up here in opening statements and say, I don ’ t know why they do the things they do, you know, trying to say, Well, he should ha v e pled true to something

-- you
can ’ t hold that against him because

-- he did this, this is him. We ’ re not arg uing that. I ’ m not standing up here arguing for it or arguing that at all. But he has a right, a constitutional right that you said th at you ag r eed you couldn ’ t hold against him, right, to make the State prove each and every element of the case. This is one of them, right?

In its rebuttal argument , the State retorted ,

[Appellant’s counsel] wants to call her a liar. Let me tell you what. Th a t guy right there (indicating) is an abusive coward. That ’ s exactly who he is. He stood up in front of y ’ all, pled not gu ilty, which he can do, to an offense that he clearly committed. But then, just to show you how obstinate he is, he told you, I don ’ t have a prior conviction either.
[Appellant’s counsel] says, Well, that ’ s his right. Sure is his right. He w ants to wast e your time and he wants to lie to you under oath, do it. But guess what? Paragraph 6, you can take that into account. [ 2 ] (emphas i s added). Appe llant objected to the prosecuting attorney ’ s argument on the ground that it sought to have the j ury hold aga inst Appellant his exercise of his right to a jury trial . The trial court overruled Appellant ’ s objection. Ultimately, the jury as sessed Appellant ’ s punishment at
the maximum term of imp risonment of twenty years.

2 Paragraph 6 pertained to Appellant ’ s election not to test ify and instructed the jury that it c ould not hold that fact against Appellant in its deliberations.4 Discussion
“The Fourteen th A mendment to the United States Constitution guarantees a right to trial by jury in all criminal cases that, were they to be tried in a federal c ourt, would come within the
Sixth Amendment ’ s guarantees.” Eason v. State , No. 05

- 10

- 01232

- CR, 2012 WL 24447 80, at *3 (Tex. App.

– Dallas June 28, 2012, no pet.) (op., not designated for publication); Chaouachi v.
State , 870 S.W.2d 88, 90 (Tex. App.

– San Ant onio 1993, no pet.); see also U.S. C ONST

. amend. VI (“[I]n all criminal prosecutions, the accus ed shall enjoy the right to a speedy .

. . trial”). Article I, section 10 of the Texas Constitution guarantees the right to trial by jury in criminal prosecutio ns. Chaouachi , 870 S.W.2d at 90; see also T EX

. C ONST

. art. I, § 10; T EX

. C ODE C RIM

. P ROC

. A NN

. arts. 1.05 , 1 .12 (West 2005 ); Franklin v. State , 576 S.W.2d 621, 623 (Tex. Crim. App. 1978)

. It is impermissible to impose a penalty for the exercise of a cons titutional right. See
Villarreal v. State , 860 S.W.2d 647, 649 (Tex. App.

– Waco 1993, no pet.) (right to jury tri al guarantee d under Sixth and Fourteenth Amendments; prosecutor ’ s comments about defendant ’ s forcing victim to testify [by virtue of proceeding to trial] were improper because penalty cannot be imposed for exercise of constitutional right). 3 “When a c omme nt is made b y a prosecutor regarding a defendant ’ s election to proceed with a jury trial, the concern of the court centers around whether the p rosecutor had, in effect, asked the jury to punish or otherwise penalize the
defendant f or exercising his rig ht t o a trial by jury.” Carlock v. State , 8 S.W.3d 717, 724 (Tex. App.

– Waco 1999, pet. ref ’ d). Propriety of the State’s Jury Argument
The State fi rst argues that the prosecuting attorney ’ s argument was not improper. In so doing , it r elies on Anderson v. Sta te , 742 S.W. 2d 541, 542

– 43 (Tex. App.

– Waco 1987), vacated on other ground s , 760 S.W.2d 262 (Tex. Crim. App. 1988). In Anderson , the prosecuting attorney stated that the defendant plead ed “not true” at the outset of the trial on punishment and that, as a r esult, the s tate had to call a fingerprint expert to prove up the conviction

. See id. The
State continued, “He doesn ’ t want to fess up. Not at all.” Id. at 543. The defendant object ed that the prosecutor improperly commented on his failure to test ify , and the tr ial court overruled his objection. Id. The court of appeals expressed doubt that the prosecutor ’ s statement was a

3 “It is improper for a prosecutor in argument to refer to a defend ant ’ s exercise of his right to a jury trial. This conclusion follows from the premise that it is impermissible to impose a penal ty for the exercise of a constitutional right.” Carter v. State , No. 01

– 98

– 00556

– CR, 1999 WL 517130, at *6 (Tex. App.

– Houston [1st Dist.] July 22, 1999, pet. ref ’ d) ( op., not designated for publication) ; see also Eason v. State , No. 05

- 10

- 01232

- CR, 2012 W L 2444780, at *3 (Tex. App.

– Dallas June 28, 2012, no pet.) (op., not designated for publication).5 comment on the a ppellant ’ s failure to testify before procee ding to resolve the issue by conducting a harm analysis. See id. W e are not per suaded that this expression of doubt renders
Anderson sufficiently analogous to permit us to hold that the prosecuting attorney ’ s co mments here are appropriate in the face of Appellant ’ s comparatively distinct objection that they
amounted to an improper co mment on his exercise of his right to a jury trial. In the instant case, the State first raised the matter of Appellant ’ s decision to plead “not
true” to the jurisdictional enhancem ent in its opening argument to the jury during the guilt

innoc ence phase of trial

. I t did so in a way that , while n ot overtly critical of Appellant ’ s decision , certainly was capabl e of raising the questi on in the jurors ’ minds that Appellant may have had reason s for doing so apart from his exercise of his constituti onal rights, which rights the prosecutor emphasized to the jury. In its i nitial closing argument, the State made no reference to Appellant ’ s de cision to plead “not true” to the jurisdictional enhancement allegation. In Appellant ’ s closing argument, he pa raphrased the prosecuting attorney ’ s statement from hi s opening argument , “I don ’ t get to tell you why people do what they do,” and reminded the jury
that it cannot hold Appellant ’ s decision to exercise his constitutional right to a jury trial against
him and that the State must prove each element of its case

. In rebuttal , the State called Appell ant an “abusive coward” and noted that Appellant

p leaded “ not guilty” to an offense “he clearly committed .” And although the prosecutor acknowledged that Appella nt had a right to a jury trial, he per sisted , couching Appellant ’ s underlying inte nt for his plea of “true” as obstinance, by stating “he t old y ou I don ’ t have a prior
conviction either .” And while t he prosecuting attorney followed this statement by agree ing with
defense counsel that Appellan t has a right to a jury trial, we note that such a statement rings hollow since, on its heels, the pr osecu tor attributed to Appellant, an underlying intent of wanting to waste the jurors ’ time and lie under oath to the m. 4 Lastly, we cannot overlook that t he prosecuting attorney immediately followed these accusations of Appellant ’ s ill intent with a
refere nce to Paragraph 6 of the court ’ s charge on punishment to preface his statement to the jury ,

“ you can take that into account .” And though the record reve als that Paragraph 6 instructs the jury about Appellant ’ s privilege not to testify , which it cannot take i nto consideration for any

purpose, rather than his exercise of his right to a jury trial, the apparent implicati on of th is

4 Appellant elected not to te stify in eithe r phase of his trial . So the only statement to which the prose cutor ’ s stateme nt that Ap pellant wants to “ lie ” to t he jury could apply is his plea of “ not true ” to the jurisdi ction al enhancement allegation.6 statement is that the jury “can” and should hold Appellant ’ s decision to plead “not true” against
him

. Base d on the foregoing, we c onclude that the prosecuting attorney improperly
commented on Appellant ’ s exercise of his right to a jury trial, and in so doing, sought to compel
the jury to punish or otherwise penalize Appella nt for exercising th is right by sugge sting to the jury that h e exercised his right for the purpose of wasting the jury ’ s time and his general dishonesty. See Villarreal , 86 0 S.W.2d at 649 (prosecutor argued def endant forced victim to

come to courtroom to test ify in front of a bunch of strangers ); Wages v. State , 70 3 S.W.2d 736, 740 (Tex. App.

– Houston [14th Dist.] 1986), pet. dism ’ d improvidently granted , 770 S.W.2d 779 (Tex. Crim. App. 1987) (prosecutor ’ s argume nt was that the reason jury had to come to court for four days was because d efendant insisted on trial) ; s ee also Eason , 2012 WL 2444780, at *4 (if prosecutor made reference to defendant ’ s exercising his right to jury trial in way calculated to place blame upon defendant for exercising that right, such w ould constitute error).
Inv ited Argument
The State next a rgues that if the prosec u tor ’ s comments were impermissible, the trial
court did not abuse its discretion in over ruling Appellant ’ s objection because A ppellant “invited”
the State ’ s argument. Under t he invited argument rule, a defendant cannot complain of improper prosecutorial argument if he invited the argument. Watts v. State , 371 S.W.3d 448, 458 (Tex. App.

– Hous ton [14th Dist.] 2012, no pet.) (citin g Ripkowski v. State , 61 S.W.3d 378, 393 ( Tex.
Cr im. App. 2001)). If the defendant ’ s counsel goes outside the record in his argument, the prosecutor is also permitted to go outside the record to respond as long as the response is within the scope of the i nvitation. Watts , 371 S.W.3d at 458.
Her e, Appe llant ’ s statement in his closing argument was made in dir ect response to the
State ’ s opening argument made during guilt

- innocence

. Appellant paraphrased the State ’ s

com ments and emphasized to the jury that his right to a trial by jury could not be held against
him. In rebutt al, the prosecutor not only responde d to Appellant ’ s argument but greatly escalated
the matter by his comments, in which he attributed malevolent in tent to Appellant for exercising his constitutional right to a jur y trial. We disagree with the State that its ex cessive rebuttal to Appellant ’ s response to a matter it first raised was invited by Appellant. See id. Therefore, we
hold that the trial cou rt abused its discretion in overruling Appellant ’ s objection to th e State ’ s jury argument.7 Constitutional Harm
H aving concluded that the trial court abused its discretion in overruling Appellant ’ s objection, we now consider whether Appellant was harmed by the trial court ’ s ruling. Because
the error at hand implicates A ppellant ’ s rights under t he United States and T exas constitutions,
we review t he error pursuant to Texas Rule of Appellate Procedur e 44.2(a). See T EX

. R. A PP

. P. 44.2(a).
Constitutional er ror is harmful unless a reviewing court determines beyond a reason able
doubt that the error did not contribute to the conviction. Id. At the o utset of its review , the court of appeals presumes reversal of constitutional error is required. See Morris v. State , 554 S.W.3d 98, 124 (Tex. App.

– El Paso 2018, pet. ref ’ d). T he State has the burden, as beneficiary of the error, to prove that the error is harmless beyond a reasonable doubt. Haggard v. State , 612 S.W.3d 318, 328 (Tex. Crim. App. 2020) (citing Dec k v. Missouri , 544 U.S. 622, 635, 125 S. Ct. 2007, 2015 , 161 L. Ed

. 2d 953 (2005) ). Thus, unlike nonconstitution al error under Rule 44.2(b),
th e State is required to come forward with reasons why the appellate court should find
constitutional error harmle ss. See Lamb v. State , 603 S.W.3d 152, 162 n.16 (Tex. App.

– Texark ana 2020, no pet.) ; Merritt v. State , 982 S.W.2 d 634, 636 (Tex. App.

– Houston [ 1st Dist.] 1998, pet. ref ’ d, untimely filed)

. I n Lamb , the s tate did not brief the issue of whether constituti onal error was harmful. See
Lamb , 603 S.W.3d at 162 n.16. The co urt noted that for it independently to review t he evidence
in the conduct of h arm analysis under Rule 42.2(a) when the state offered nothing to meet its
burden would undermine the notion tha t the state bore the burden of proof on the issue. See id. (notin g that “[Under Rule 44.2(a),] the ‘ default ’ is to reverse unless harmlessness is shown. Thus, if neither party does anything, the case will be reversed. This requires the State to come
for ward with reasons why the appellate court should find the error ha rmless”). The court further opined that conduc ting a harm analysis in absence of the issue’s having been briefed by the state improperly wo uld place it in the position of being an advocate for the state. See id. (citing Meyer
v. State , 310 S.W.3d 24, 26 (Tex. App.

– Texarkana 2010, no pet.) (“[T]his Co urt does not act on
behalf of t he State. We do not, and cannot, create arguments for parties

— we are neither the appellant ’ s nor the appellee ’ s advocate”)). As a result, the court in Lamb declined to conduct an independent constitutional harm analysis in the absence of any briefing by the s tate asserting
harmless error. See Lamb , 603 S.W.3d at 162 n.16.8 Here, in its brief , the State argued onl y that the statements made during the prosecutor ’ s jury argument w ere not improper or, alternatively, that the ar gu ment was invited. However, t he State declined to address, either in the alterna tive or in response to Appellant’s thorough briefing
on the i ssue of harm , why such error alleged by Appellant , who received th e maximum sentence

u n d er the law, is harmless. See id

. Therefore, because th e State bore the bu rden of proof and made no attempt to meet its burden, we are left with the presump tion that r eversal of this constitutional error is required. See Haggard , 61 2 S.W.3d at 328; Lamb , 603 S.W.3d at 162

n. 16.; Merrit , 982 S.W.2d at 636; see also Morris , 554 S.W.3d at 124. Appellant ’ s first issue is
sustained. 5

D ISPOSITION Having sustained Appellan t ’ s first issue, we reverse the trial court ’ s judgment and
remand the cause for a new trial on punishment.

B RIAN H OYLE Justice
Opinion deliv ered October 21 , 20 22. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

5 Because we have sustained Appella nt ’ s first issue, we do not consider his second issue regarding the trial court ’ s overrul ing his objection to two exhibits admitt ed in his trial on punishment. See T EX

. R. A PP

. P. 47.1.

## COURT OF APPEALS

TWELFTH COURT OF A PPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 21 , 2022

NO. 12

- 2 1

- 00226

- CR

MARCUS LAM ONT ALLEN , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 241st District Court
of Smith Count y, Texas (Tr.Ct.No. 241

- 1932

- 20 )

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same bei ng considered, because it is the opinion of this Court that there was error in judgment of the court below, it is ORDERED, ADJUDG ED and DECREED by this Court that the judgment be reversed and th e cause remanded to the trial court for a new trial on punishm ent in accordance with the opinion of this Court; and that this decision be certified to
the court below for observance.
Brian Ho yle , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Ne eley, J.