### TEXA S COU RT O F AP PEAL S, THIR D DISTRIC T, AT AU STIN

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4444 NO. 03-99-00666-CR

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Tra mel le De schun Wal

lace , Appellant
v. The State of Texas , Appellee

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4444444444 FROM THE DISTRICT CO URT OF HARRIS COUNTY, 177T H JUDICIAL DIST RICT NO. 808,764, HONORABLE CAROL G. DAVIES , JUDGE PRESIDING

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Tra m elle Deschun Wallace appeals from his conviction for possession of

less than
one gram of phen cycli dine. SeeTex. Heal th & Safety Code Ann. §§ 481.102(8), .115(a), (b) (West Supp. 200 0). Thejury as sess ed appe ll ant’s pu nishment at c onfine ment in a sta te jail facility for two yearsand a fine of $1, 500.

Appellant assertsthat the evidence is legally and factu ally ins uffi cient to s ustain the j ury’s ver dict and that the trial court er red in overr

uling appellant’s objection to the prosecut or’s improperargument and in denying his motion for a new trial. Appellant’s point of error relating to the jury argument wil l be sustained; the judgment will be revers ed and the
causeremanded

to the trial cour

t. We will firs t consid er app ellant’ s fou rth poin t of er ror i n which he insists that the evidence is legally in suff icient to support his conviction. I n reviewing the legal suffic iency of2

th e evidence, we view the evidence i n the ligh t most favorable to the prosecut ion and ask whether any rational trier of fact could havefound the essential e lements of the offens e beyond
a reasonab le dou bt. See Jac kson v. Vi r ginia , 443 U.S. 307, 319 (1979) ; Staley v . State , 887 S.W.2d 885, 888 (Tex. Crim. App. 1994 ); Geesa v. State , 820 S.W.2d 154, 162 (Tex. Crim. App. 1991); Martinets

v. State , 884 S .W.2d 185, 18 7 (Tex . App .—A ustin 1994, n o pet.). On the night of March 25, 1999, police offic ers Raleigh Jorda n and Gregg Ford were patrolling in the “South Union” neighborhoodof Houston. A car about a block ahead of them on Corder Street turne d onto Scott Street without giving a turn s ignal. The officersused their emergency equipment and lights to signal the driver of the car to stop. The car turned from ScottStreetonto the next side stree t and stopped. As soon as the c ar stopped, a ppellant got out of the dri ver’s seat and glanced down at the inside of thedoor panel as if he had lost something. Appellant then sta

rted to walk toward Jordanand the patrol car. Jordan orde red appellant to get backin his car, but appe llant kept walking toward Jordan. Jordan tol d appellant to place his hands on the patrol car, patted him down, and finding no weapons putappellant on the back seat of the p a trol car. For

d was watching the other three occupants of appellant’s car . Jordan smelled the strong distinctive odor of phencyclidine and looking toward the open door on the passen ger side of app ellant’ s car saw thre e cigarettes o n the window contr ols on thearmres t. Ford raked

the cigarettes into a plas tic bag which he gave to Jordan. The marijuana cigarettes1 Jordan testif ied that phencyclid ine “is basicall y what fun erals use when som ebody dies. It’s embalming fluid they use forthe deadperson’s b ody, t o steril ize it , clean i t out , I guess. It has a distinct odor . . . it will alert your senses , it will make your eyes water , it w ill give you minor headac hes, or yo u can al so beco me d izzy . . . . If you get it on your skin, it can ruin yo u.”
2 Theexpe rt

al so te st if

ie d that “ emb al min g f

lu id ” wa s t

he st re et name for phencyclidine but that phencyclidine was not used by funeral homes as an embalming fluid. 3 ha d b ee n d ip pe d i n p he nc yc li di ne . T he st re et name for marijuana cigarettes which have been dipp ed in p hency clidi ne is “fry st icks.” 1

Elton Mayberry, one of the passengers in appellant’scar, was released at the s cene when the officer s determined that there were no outstan ding warrants f or his arres t. The other two passenge rs, Matthew Dimm erso n and Donald Rac hell, were arrested a nd taken t o jail beca use the offi cers dete rmin ed tha t there were o utstan ding traffic w arrants for t heir arr est . Appellant was arrested f or the posses sion of phencyclidine. An exper t witness testified that the three fr y sticks were marijuana cigare ttes which had been soaked with phencyclidine. 2 Viewed in the light most favorable to the prosecution, the evidence is suff icient for a rational trier

of fact to f

ind that the essential elements of the offensewere proved beyond a reasonable doubt. Appellant’s fourth point of e rror isoverruled.

In his fifth point of e rror, appellant urges that the evidenc e is factually insuf ficient to supp ort his convicti on. I n revie wing factu al suf ficie ncy of

the evide nce, we vi ew all th e evidence “without the prism of ‘in the light most favorable to the pros ecution’”; we set aside the jury’s verdic t only if it is so contr ary to t he over whelming weight of th e eviden ce as t o be clea rly wrong and un

just. See Cle

wis v. State , 922 S.W.2d 126, 129 (Tex . Crim. App. 1 996); Stone v. State , 823 S .W.2d 375, 38 1 (Tex . App .—A ustin 1992, p et. re f’d). In perfor ming a factual4

sufficienc y review, the courts of appeals are r

equired to give defer

ence to the jury verdic t and examine all of the evidence impartially, setting aside thejury ve rdict “ only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrongand unjust.” Cain v. Sta te , 958 S.W.2d 404, 410 (Tex. Crim. App. 1997) (quoting Clew is , 922 S.W.2dat 129). Recently, the Clew is standard has be en reprise d, “[T]he complete and cor rect standar

d a review ing co urt must follow to conduct a Clew is factual suf

ficiencyreview of

the elem ents of a crimin al offense asks whether a neutral review of all the ev idence, both for and agains t the finding, demonstrates that the pro of of guilt i s so obv iousl y we ak as to underm ine co nfiden ce in t he jury ’s determination, or the proof of guilt, although adequate if taken alone, is grea

tly outweighed by contrary proof.” Johnso n v. State , 23 S.W .3d 1, 11 (Tex. C rim. A pp. 200 0).

We will summ arize the additional evidence prese nted to the jury. The twentyseven -year-old

appellant testified in his own d efense. He testified that he did not turn from Corder Street on to Scott Street and that he had not f ailed to give a turn signal bef ore he was stopped. He t estifie d that whe re he sto pped j ust off Sc ott S treet t here were no street lights, his car windows were darkly tinted, and the dome light did not work. Furth er, he testified that as
soon as he stopped, hegot out of hi s car, kicked the door shut, and walked toward Officer J ordan with his hands up holding his driver’ s license and proof of insurance . When he did not follow Jordan’s order to get back in his car, Jor dan made him place his han ds on t he pol ice car. Jordan then searched him and pu t him in th e back se at of th e poli ce car. A ppell ant te stified the offi cers removed the other three occ upants from his car . The front seat pa ssenger, Donald Rachell, was the las t one re quired

to get ou t of the car. Appellant testified that the officer s searc hed his car5

after the f

ourmen ha d b ee n p la ce d i n the po li ce ca r. Af te r t he se arch , w he n J orda

n c ame back to the police car exh ibiting the fry sticks, Rach ell sai d the fry sticks were his. Appellant testified he had never see n the fry sticksunti l J orda n s ho wed th em t o h im, and denied possess ion of the phencyclidine laced marijuana cigarettes. Appellant admitted he gave the off icershis brothe r’s driver’slicense, but testif ied he told them he had picked up that license by mistake. Matthew Dim merso n, a rear seat pas senger i n appe llant ’s car, testi fied th at before Jordan exhibited the fry sticks , he had never seen them. Dimmerson testified he saw his co usin Rachell reach over

toward the driver’sside of the car after appellant got out of the car—“I seen him lean o ver to t he side and sit som ethin g dow n . . . I’m n ot sure w hat it was.”

Elton M ayberry, the other back seat pa ssenger in appe llant’s car, also testified. He was a fr

iend of Dimm erso n’s a

nd did not know appe llant untilappella nt picked him up at
a bus sto p on S cott S treet l ess than ten m inut es before t he pol ice sto pped a ppell ant. M ayberry testified that appe llant got ou

t of the car, closed

the door , and walke d toward J ordan with his driver’s license and proof of insurancein his hands. Mayberry tes tified thatall fou r men were handcuffed

and put in the back seat of the policecar. Mayberry did not se e or smell any drugs in appellan t’s car. After the office rs determined there wereno outstanding warrants f or Mayberry, he was releas ed and allowed to leave the scene.

Office rs Jordan and Ford ga ve rebuttal testimony. Jordan testif ied that he did not
see Rachell make any mov ement from the passenger ’s seat toward the dr iver’s s ide of appel lant’s car where the fry stick s were found. He testified that appellant did not s hut his car dooran d that the do me ligh t wa s on. According to Jordan, Rachell did not claim the fry s ticks6

when arres ted. Jordan de nied that appellant told him he had picked up his brother’s driver’s license by mistake. Appellant, Dim merson, and M ayb erry were put in the back s eat of the police car, Jor

dan testified, but

Rachell was handcuffed to the bumper of the policecar because h e was too large to put in the back seat with the other men. After Mayberry was re lea sed , Rachell was t

hen put in t

he back seat with Dimmerson a

nd appell ant. Officer Ford, testifying in rebuttal, said he had no problem seeing the inside of appel lant’s car; the dome light w as on, and he did not see Ra chell reach ov er tow ard the d river’s side of appel lant’s c ar. Ford recovered the fry sticksafter Jor dan directed

hi s a tt enti on to th em. Ford didnot hear Rache ll claim the fry sticks. App ellant presented h is brother’s driver’s license for identification and said nothing about his possession of

his brother’ s license being a mistake. We h ave made a neutral review of all of the evidence, applied the f actual sufficienc y standard of r eview, and hold that the evidence is not so weak as to under mine the jury’s determination of guilt or that the proof of guilt, although ade qua te if ta ken alone , is greatly outweighed by contrary pr oof. Appellant’s f

ifth point of err

or is overr

uled. In his first poin t of err or, appe llant ins ists th at the tr ial cour t erred at the guiltinnocence phase of trial by overruling his objection to the prosecutor’ s improper jury argument in which he said:
Mr. Wallace al so told

you that Don [Rachell] admitted to Officer Jordan that they were his fry s ticks. There is no other evidenc e to that e ffe ct. No one e lse said -- and Mr. Dim merson was in the back of the patrol ca r at the time, he didn ’t testi fy Don admit ted it. Bo th officers s ai d that never happened. I submit to you, the defense hasthe exact same subpoena power I do. Where is Don? [Defense Counsel]: Objection, Your Honor. May we approach the bench?7

THE C OUR T: No. Continue. [Defen se Cou nsel]: Y our H onor, I w ould objec t to h im -- THE C OUR T: Overruled. [Prosecut or]: It’sjust s im ply n ot credi ble. D on nev er adm itte d it. It wasn ’t Don’s, it’s Tram elle’s.
The State does not contend that the appellant failed to preserveerror for appella te
re vie w. The record shows that the trial court and the prosecutor were well aware of the gr ounds for appel lant’s o bject ion. SeeTex. R. App. P. 33.1 (a) (1)( A); Zillender

v. State , 557 S.W.2d 515, 517 (Tex. Crim. App. 1977 ); Kelly v . State , 903 S. W.2d 809, 811 (Tex . App.—Dallas 1 995, pe t. ref’d); Jefferson v. St

ate , 900 S.W.2d 97, 100 (Tex. App.—Houston [14th Dist.] 1995, no pet .). In jury argument, the State can properly comment on a def

endant’ s fai lure to call a compet ent and m aterial wi tness who is available to testify and c an argue that becaus e of the failure to ca ll th e wi tn es s, th e wi tn es s’ s t es ti mo ny wou ld have been unfavorable to the defen dant. See Albiar

v. State , 7 39 S. W. 2d

36 0, 36 2- 63 (T ex . C ri m. App. 1987) ; Carr illo v. State , 566 S.W.2d 902 , 912 ( Tex. Crim. App. 1978); Reese v . State , 905 S.W.2 d 631, 636- 37 ( Te x . App.—Texarkana 1995, pe t. ref ’d). However, s uch a co mment is imprope r when the w itness is not available to testify on behalf of the d efend ant. See Hen dricks v. State , 640 S.W.2d 932, 937 (T ex. Cri m. A pp. 198 2). A w itness who invo kes his F ifth A men dm ent rig ht aga inst se lfincrimination is not an avail able w itness
. See Bushv. State , 773 S.W.2d 297, 301 (T ex . C ri m. App . 1989).3 The State does not contend that the argument was proper an d fe ll within the four

generally accept ed are as fo r jur y argu ment; that is ( 1) su

mmation of evide nce, ( 2) re asona ble deduction from the evidence, ( 3) ans wer to argument of op posing c ounsel, or (4) plea for law enfor cement. See Guid

ry v. Stat e , 9 S. W. 3d

13 3, 15 4 ( Te x. Cr im. App. 1999) ; Alejandro v. State , 493 S .W.2d 230, 23 1 (Tex . Crim . App . 1973). 8

The record s hows that the witnessDon Rachell referred to i n the p rosecut or’s jury argument invoked his Fifth Amendm ent right against self -incrimination and did not testify. Don Rachell, having invoked his Fif th Amendm ent right, was not an available witness. The prosecut or’s jury argument was improper , and th e tria l court err ed in failing to promptly su stain defense cou nse l’s objection. The State does not c ontend that the prosecutor ’s argument was prope r or t

hat the tr ial cour t’s r uling was co rre ct. 3 The issue we m ust de ci de is whe the r t he er ro r c ommit

te d r eq uires re ve rs al . On appeal, the State argues that the prosecutor ’s ar gu me nt and the trial court’ s errone ous ruling
were small or of no consequenceand, theref ore, not re versible e rror. A ny err or, d efec t, irregu larity, or var

iance, other t

han cons titutionalerror, th at does not aff ect sub stantia l rights must be disre garded. See Tex. R. App. P. 44.2(b). Therefore , we must determine whether the
erro rcommi tted affected a ppellant’s rights substantially or whether the er ror shoul d b e disregarde d. Appellant testi fied th at he d id no t possess the fry sticks but that they were Donald Rachell’s and t hat Rachel l had claim ed the fry sticks w ere his.

Prior to trial, the pros ecutor knew that Rachell had claimed the fry sticks and that he had placed th em w here they were found by the officers, and that a trial judge had appointed
counse l to advis e Rachell whet her heshould te stify . Rachel l appear ed for appella nt’s t rial. Afterthe parties announced r eady for tr

ial, the trial court de termined that Rachell’s proposed9

testimony wou ld

be se lf -i nc ri min at in g a

nd th at hi s a pp oi nt ed co un se l h ad

ad vi se d h im no t to testify. Rachell the n infor med the judge t

hat he would e xerci se his FifthAmendm ent right not to testify. The pros ecutor knew of Rach ell’s decisi on not to te stify and knew Rache ll was not an avail able witnes s that th e defense co uld call.

To determine whether improper jury argu me nt constitutes rever sible error , the Cou rt of Criminal Appeals has adopted the same analytical method as applied by federal co urts. SeeMo sley v . State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Three factorsare to be considered. They are “(1) se verity of the misconduct (the magnitude of prejudicial effec t of the prosecut or’s re marks), (2)measures adopted to cure the misconduct (the eff icacy of any cautionary instruc tion by the judge), and ( 3) the certainty of conviction absent the misconduct (the strength of

the evidence supporting the convic tion).” Id. The Mosley opinion does not give any one of the th ree factors greater weight t han the othe r two factors.

We turn now to the application of the three factors a pproved in Mosley . F ir st , we decid e the sev erity o f the m iscond uct (th e ma gnit ude of p rejudi cial e ffect of th e prosecu tor’s remarks). Here, the prosecutorcondemned the defense for not calling a witness who was not
an available witness. The pros ecuto r knew or should have known that his argument was flagrantlyim proper. It was not a mere ina dverte nt comment. It a ppear s to havebeen pur

posely made to unfairly undermine appellant’sdefense. The obvious intent of the prosecutor

was to make th e jury believe appellant had lied to them and to bolster the tes timony of the S tate’ s witn esses. The comment, intention ally made, was unfair; it cannot be condoned. The pros ecutor ’s ar

gument was calculated to harm appe llant.10 Secon d, we consid er the m easures ad opted to cure the misconduct (the effica cy of any cau tion ary inst ructio n by t he jud ge). A t rial ju dge’s cura tive i nstruct ions t o disreg ard a prosecut or’s improperargum ent w ill g enerall y render t he prosec utor’s argu men t harm less. See, e.g., Nenno v

. State , 970 S.W.2 d 549, 5 65 (Te x. Cri m. A pp. 199 8); Ransom v. St ate , 920 S.W.2d 288, .303 (Tex. Crim. App. 1994 ); United States v. Apodaca , 666 F. 2d 89, 97 (5th Cir. 1982 )
. In this case, there was no cautionary ins truction. Not only was no cautionary instruction given to the jury, the trial cour t’s curt r uling and instruction for the prosecutor

to continue gave the trial court’s stamp of approval to the indefens ible argument. This was partic ularly unfor tunate when the trial c ourt was wellaware tha t Rachell was an unavailable witness who had invoked his Fifth Am endm ent pri vileg e. The jury w as unaware that Rachell d id not testi fy because he had exercise d his F ifth A men dm ent rig ht. Taki ng in to acco unt t he tria l court ’s approval of the prosecut or’s argument, the jury could cer tainly infer that Rac hell’s testimony would have branded appellant a liar willing to give perjurious tes timony. The court’s improper ruling and the abs ence of

a cura tive jur y instr uction wer e palpab ly harmfu l to appel lant. Third, we address the c ertainty of conviction abs ent the misconduct (the s trengt h of the evidence of

co nvi ct ion). Alth ough we have de cided theevidenc e is leg ally and f actually sufficient to support the jury’ s verdict, the evidenc e of ap pellant’ s guilt is not overwhelming. Det erm ining whether or not there was a ce rtainty of con viction a bsent, the miscondu ct is partic ularly

difficult in this cas e. The prosecutor ’s misconduct and the trial cour t’s ruling added stre ngth to the State’s caseand detracted from the strength of thedefense. It is diff icult to gauge the importance the jury may have plac ed on the abs ence of Rachell’s testimony after the11

prosecut or’s im proper j ury argum ent an d the t rial co urt’s erroneous ruling allowed the jur y to consider the abs ence of Rachell’s testimony.

When all three of the fac tors used to deter mine harmless error in jur y argument
are considered together , we cannot say the rights of appel lant w ere not substantially aff ected. The misconduct of the prosecutor condoned by the trial court cons titutes error that cannot be disregarde d. Appellant’s firs t point of error is sustained. In view of

our disposition of appe llant’s fir st point of error, we need not consider appellant’s sec ond and third points of er ror that the trial c ourt erre d in refusing to grant a new trial. The judgment is reversed an d the cau se is r emanded to thetrial c ourt.

Carl E. F. Dally, Justice Befor e Jus tices J ones, Kidd and Dally * Reversed and Remanded Filed: October 5, 2000 Do N ot Publi sh

Before C arl E. F . Dal ly, Jud ge (retire d), Cou rt of Criminal Appeals, sitting by assignment. SeeTex. G ov’t C ode A nn. § 74 .003(b) (W est 199 8).