### In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________ No. 06

- 1 0

- 00 122

- CR

______________________________

VANESSA RENEE WREYFORD , Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2

Smith County, Texas Trial Court No. 002

- 83290

- 09

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Mo rriss2 MEMORANDUM OPINION
In a jury trial, in contesting mainly whether Vanessa Renee Wreyford was intoxicated at
the time she drove along a public thoroughfare in Smith County, 1 the attorneys got a little testy.
In the process, Jacob Putman, Assistant District Attorney, improperly characterized Wreyford ‘ s counsel as having ― lied to the jury ‖ and, at a different time, as a ― snake oil salesman. ‖
Wreyford appeals from her conviction for driving while intoxicated (DWI) and her
sentence of ninety days ‘ confinement in the Smith County jail. Wreyford alleges that the
evidence is legally insufficient 2 to support her conviction and that the trial court erred in
overruling objections to the State ‘ s statements concerning her attorney. Although we condemn
the above statements of Putman verbally abusing Wreyford ‘ s attorney, w e affirm the trial court ‘ s judg ment, because (1) sufficient evidence supports Wreyford ‘ s DWI conviction, and (2) no
reversible error appears concerning the State ‘ s statements.

1 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See T EX

. G OV ‘ T C ODE A NN

. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See T EX

. R. A PP

. P. 41.3.

2 Wreyford also argues the evidence was factually insufficient to support her conviction. Recently, a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review established by Clewis v. State , 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny. Brooks v. State , 323 S.W.3d 893 , 912 (Tex. Crim. App. 2010) . The Jackson v. Virginia legal

- sufficiency standard is the only standard that a reviewing court applies in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Id

. Therefore , we will not address the challenge to the factual sufficiency of the evidence.3

(1) Sufficient Evidence Supports Wreyford ’ s DWI Conviction
In evaluating Wreyford ‘ s legal sufficiency chall enge , we review all of the evidence in the
light most favorable to the jury ‘ s verdict to determine whether any rational jury could have found
the essential elements of DWI beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319
(1979); Sanders v . State , 119 S.W.3d 818, 820 (Tex. Crim. App. 2003); Hartsfield v. State , 305
S.W.3d 859, 863 (Tex. App.

— Texarkana 2010, pet. ref ‘ d ) (citing Clayton v. State , 235 S.W.3d
772, 778 (Tex. Crim. App. 2007)). During our examination, we give deference to the

re sponsibility of the jury ― to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. ‖ Hooper v. State , 214 S.W.3d 9, 13
(Tex. Crim. App. 2007) (citing Jackson , 443 U.S. at 318

– 19)

.
S ufficiency of the evidence is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997);

see also Grotti v. State , 273 S.W.3d 273, 280 (Tex. Crim. App. 2008); Vega v. State , 267 S.W.3d
912, 916 (Tex. Crim. App. 2008). Under a hypothetically correct jury charge, Wreyford
committed the offense of DWI if (1) s he (2) operated (3) a motor vehicle (4) in a public place
(5 ) while intoxicated. T EX

. P ENAL C ODE A NN

. § 49.04 (Vernon 2003)

. ― Intoxicated, ‖ the crux
of Wreyford ‘ s complaint, means:4

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a dru g, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.

T EX

. P ENAL C ODE A NN

. § 49.01(2) (Vernon 2003).
Trooper Trevor Phillips was patrolling t he highway at 11:00 p.m. when he noticed
Wreyford ‘ s vehicle was without a front license plate and with ― a defective license plate light on the
very back. ‖ He testified she was driving ― 40 to 45 miles an hour ‖ in a ― 65

- mile

- per

- hour zone. ‖
Phillips ― initia ted [his] emergency lights ‖ and claimed Wreyford ― was slow to respond. ‖ After
initial contact, Wreyford was able to retrieve her license and insurance without difficulty. Yet,
because Phillips ― detected a strong odor of an alcoholic beverage coming from the interior of the
vehicle, ‖ he asked her to exit the vehicle and determined that the smell of alcohol was ― coming
from her breath and person. ‖ Wreyford told Phillips she ― had one to one and a half beers. ‖
Phillips ― noticed she wasn ‘ t walking a straig ht line as she walked towards the front portion
of [his] vehicle, ‖ and decided to administer a series of field sobriety tests. According to Phillips,
Wreyford exhibited six out of six clues during the horizontal gaze nystagmus test, including a
pronounced lack of ― smooth pursuit ‖ in both eyes. Noting the NHTSA statement that a display of
four or more clues indicates a high probability of intoxication, Phillips moved to the walk and turn
test. He testified Wreyford failed this test because she ― couldn ‘ t b alance during instruction; she
also started too soon; she missed heel to toe; she stepped off line; and she turned improperly. ‖5

Phillips also claimed Wreyford ― swayed while balancing, . . . put her foot down and . . . used her

arms for balance ‖ during the one

- leg

- stand test. Wreyford passed the fourth ― finger count

observation ‖ test. After administering these tests, Phillips concluded with ― 100 percent ‖ assurance that
Wreyford was intoxicated. Wreyford ― refused to provide any type of breath sample. ‖ In transit
to the jail following her arrest, Wreyford told Phillips ― she believed she [was] a little intoxicated

but didn ‘ t deserve to go to jail. ‖ Wreyford reportedly used profanity and then began to fall asleep.
After hearing Phillips ‘ testimony an d watching a video recording of the arrest, the jury
found Wreyford guilty. Viewing all of the evidence in a light most favorable to the jury that
found Phillips ‘ testimony credible, we conclude that a rational jury could find beyond a reasonable

doubt th at Wreyford did not have the normal use of her physical faculties by reason of the
introduction of alcohol. The evidence is legally sufficient to support the jury ‘ s verdict.
(2) No Reversible Error Appears Concerning t he State ’ s Statements
Permissible j ury argument falls into one of four areas: (1) summation of the evidence;
(2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or
(4) a plea for law enforcement. Cannady v. State , 11 S.W.3d 205, 213 (Tex. Crim. A pp. 2000).
Argument that strikes at a defendant over the shoulders of defense counsel is improper. Wilson v.

State , 7 S.W.3d 136, 146

– 47 (Tex. Crim. App. 1999); Dinkins v. State , 894 S.W.2d 330, 357 (Tex

.
Crim. App. 1995). A prosecutor risks improperly ― striking at a defendant over the shoulder of6

counsel when the argument is made in terms of 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. 1998). Suc h argument has been repeatedly condemned. Gome z v. State , 704 S.W.2d
770 (Tex. Crim. App. 1985); Fuentes v. State , 664 S.W.2d 333 (Tex. Crim. App. 1984).
Even when an argument exceeds the permissible bounds of these approved areas, it will not

be reversible unless the argument is extreme o r manifestly improper, violates a mandatory statute,
or injects into the trial new facts harmful to the accused. Wesbrook v. State , 29 S.W.3d 103, 115
(Tex. Crim. App. 2000) (citing Todd v. State , 598 S.W.2d 286, 296

– 97 (Tex. Crim. App. 1980) )

.
The prosecutor ‘ s remarks must have been a willful and calculated effort to deprive a defendant of
a fair and impartial trial. Id. (citing Cantu v. State , 939 S.W.2d 627, 633 (Tex. Crim. App. 1997 )).
In most instances, the court‘ s instruction to disregard the remarks will cure the error. Wilkerson v.

State , 881 S.W.2d 321, 327 (Tex. Crim. App. 1994 ); Cooks v. State , 844 S.W.2d 697, 727 (Tex.

Crim. App. 1992).
During jury argument at the guilt/innocence phase , Erick Pla tten, Wreyford ‘ s attorney , referred to Phillips and argued:
The evidence as you heard it from this stand. That ‘ s what we ‘ ve got. You just don ‘ t show up and start slinging stuff all over the place and see what ‘ s going to catch. Well, I ‘ m trained in field sobriety testing, and I ‘ ve pulled over so many people and this, that and everything else. I am not saying he ‘ s a bad guy or anything like that. He is doing his job. Doing a job that the billboards throughout this state say. You drink. You drive. You go to jail. I am not endorsing alcohol and drunk driving, like I said, but what y ‘ all saw was someone that was not driving while intoxicated.7

The following exchange occurred during the subsequent argument by Assistant District
Attorney Putman:

MR. PUT MAN: The walk and turn test. You need two clues to be intoxicated. She had five clues. Now, understandably, you couldn ‘ t see them on the video. She misses heel to toe and steps off line. You couldn ‘ t see it because the hood of the car was in the way. There is nothing we can do about that. But the trooper was there, and he told you. Trooper Phillips has no reason to lie to you. And make no mistake, Mr. Platten flat out called him a liar. He said, I don ‘ t think he ‘ s a bad guy. I think he was doing his job. But that ‘ s not all he said. He said

—
MR. PLATTEN: Objection. Striking at the defendant over the shoulder of the attorney, Your Honor.

MR. PUTMAN: Judge, I can ‘ t help it if Mr. Platten lied to the jury.

MR. PLATTEN: I did not lie to th e jury.

THE COURT: Number one, Mr. Platten, your objection is denied. Number two, your sidebar comment to Mr. Platten just then, Jurors, disregard that. Make your argument to the jury.

At the time of Platten ‘ s objection, Putman was, initially, not attacking Platten personally , but was responding to Platten ‘ s suggestion that O fficer Phillips ‘ testimony should not be believed.

A n answer to the argument of opposing counsel challenging the credibility of a witness is proper

f odder for jury argument. See Waites v. State , No. 06

- 09

- 00096

- CR, 2010 WL 2477783, at *3
(Tex. App.

— Texarkana June 18, 2010, no pet.) (mem. op., not designated for publication) ; Blue v.

State , No. 14

- 09

- 00184

- CR, 2010 WL 1655485, at *7 (Tex. App.

— Houston [14th Dist.] Apr

. 27,8

2010, no pet.) (mem. op. , not designated for publication) ; 3 Mijores v. State , 11 S.W.3d 253, 256
(Tex. App.

— Houston [14th Dist.] 1999, no pet.); Giesburg v. State , 945 S.W.2d 120, 126 (Tex.
App.

— Houston [1st Dist.] 1996) , aff ’ d , 984 S .W.2d 245 (Tex. Crim. App. 1998)

. In direct and immediate response to Platten ‘ s objection, however, Putman personally and
explicitly impugned Platten ‘ s character by claiming Platten lied to the jury. Clearly, this was
improper.
Both the Texas Supreme Co urt and the Texas Court of Criminal Appeals have adopted

― The Texas Lawyer ‘ s Creed

— A Mandate for Professionalism ‖ in an attempt to eliminate such
abusive practices by lawyers. Such abusive practices do a disservice to citizens and demean the
legal profess ion. That Creed mandates that a lawyer will not ― attribute bad motives or unethical
conduct to opposing counsel ‖ or make ― disparaging person al remarks

. . . towards opposing

counsel

. . . . ― The Texas Lawyer‘s Creed

- A Mandate for Professionalism III (10) (adopted by the
Supreme Court of Texas and The Texas Court of Criminal Appeals Nov. 7, 1989), reprinted in

Texas Rules of Court 804

– 05 (West 2010).
We often hear disparaging comments about lawyers, judges, and the legal system at large.

Putman ‘ s conduct here encourages and, in part, validates those who would attack our justice
system. If those of us in the legal system expect citizens to respect the system and the rule of law,
judges and lawyers must act in a professional and respectful manner. In exercising their vital role

3 Although th ese unpublished case s ha ve no precedential value, we may take guidance from them ― as an aid in developing reasoning that may be employed. ‖ Carrillo v. Sta te , 98 S.W.3d 789, 794 (Tex. App.

— Amarillo 2003, pet. ref‘d).9

of advocates in our system, lawyers must behave professionally and ethically. Instead of
inculcating public confidence in our legal system, Putman ‘ s statements lacke d that
professionalism and embarrassed the system.
Platten did not, however, object to Putman ‘ s accusing him of lying ; he simply denied the
accusation. Though the statement that Platten lied to the jury constituted a strike at a defendant
over the shoulders of defense counsel, the issue is not before us as a ground for reversal. Also, the
trial court recognized the improper character of Putman ‘ s statement and directed the jury to
disreg ard it. See T EX

. R. A PP

. P. 33.1 ; Mijores , 11 S.W.3d at 256

. 4 This improper statement was
not preserved for our review, and the trial court provided Wreyford all she could have reasonably
asked for, the instruction that the jury disregard it.
Wreyford a lso argues the trial court erred in failing to sustain objections to Putman ‘ s argument during the punishment phase. To place the argument into context, we review the record
during Platten ‘ s closing argument in the guilt / innocence phase. In closing argume nt, Platten

stated:
[PLATTEN:] I hope I wasn ‘ t putting you to sleep when I was asking these questions because that was not my intention. I had to be as thorough as possible about some of these things. Because that ‘ s my job. My job is not to stand up he re and be a snake oil salesman and try to make something that it ‘ s not. That ‘ s not what I ‘ m doing.

4 Even if Wreyford had objected to the comment that Platten lied to the jury, she failed to preserve error by failing to request a mistrial. Cook v. State , 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) ( to preserve jury argument error for appell ate review, defendant must (1) object, (2) request an instruction to disregard , and (3 ) move for mistrial).10

At punishment, the following record was made:

MR. PUTMAN: Mr. Platten told you he wasn ‘ t a snake oil salesman. Remember his closing argument?

MR. PLATTEN: Objection to striking at the defendant over the shoulder of the attorney.

THE COURT: Denied.

MR. PUTMAN: That ‘ s exactly what he said is he wasn ‘ t a snake oil salesman. I disagree. She got up here and said

—
MR. PLATTEN: Objection for name calling.

THE COURT: Denied.

MR. PUTMAN: She got up here and told you her family is sick. She has responsibilities. Please don ‘ t punish me.
(Emphasis added.)
The objection ― for name calling ‖ was an objection to striking at the defendant over the
shoulder of the attorney. T EX

. R. A PP

. P. 33.1(a)(1)(A). The objection was made in response to
another personal attack on Platten

— that he was a snake oil salesman. This remark, too, was
improper. 5 Wilson , 7 S.W.3d at 147; Mosley , 983 S.W.2d at 259 (argument suggesting counsel
wanted to divert jury from truth was assumed inappropriate). The trial court should have
sustained that objection. But, we do not believe that error was reversible.

5 Our previous comments, in condemnation of Putman ‘ s ― liar ‖ accusation, apply here as well.11

Because comments striking at the defendant over the shoulder of counsel have ― never been

held to amoun t to a constitutional violation, ‖ but instead ― constitute  ̳ other errors ‘ within the
purview of Rule 44.2(b), ‖ we must follow the rule that ― [a] ny other error, de fect, irregularity, or
variance that does not affect substantial rights must be disregarded. ‖ Mosley , 983 S.W.2d at 259 ;

see T EX

. R. A PP

. P. 44.2(b); George v. State , 117 S.W.3d 285, 289 (Tex. App.

— Texarkana 2003,
pet. ref ‘ d). In making this determination, we weigh the severity of the misconduct (the magnitude
of the prejudicial effect of the prosecutor ‘ s remarks), any measures adopted to cure the
misconduct, and the certainty of conviction absent the misconduct (the strength of the evidence
supporting the conviction)

. Mosley , 983 S.W.2d at 259

– 60; Hawkins v. State , 135 S.W.3d 72,

75

– 76 (Tex. Crim. App. 2004).

In Mosley , the prosecutor ‘ s jury argument contained a rather specific claim that defense
counsel was attempting to di vert the jury from the truth:
There is only one route to the truth. It is by traveling on the main road. That will take you to your proper destination. But you must stay on the main road. The defense has attempted to get you off the main road, to diver t you. They don ‘ t want you to stay on the main road because they know where that will take you.

. . . They want you to take a side road, a series of side roads, rabbit trails, and a rabbit trail that will lead you to a dead

- end. The truth is not there.
Mosley , 983 S.W.2d at 258. Mosley referred to federal caselaw 6 in deciding these comments

were ― mildly inappropriate, ‖ did not directly accuse the defense attorneys of lying, did not suggest

6 Mosley cited to the following cases in support of its holding: United States v. Millar , 79 F.3d 338, 343

– 44 (2nd Cir. 1996) (comments th at defense of case was ―hog wash,‖ that defense counsel had created ―smoke screen,‖ and trying to ―confuse‖ jury and ―lead the m astray‖ ―clearly did not rise to the level of severity to require reversal‖); United States12

that any evidence was manufactured, and did not inject new fact s into evidence. Id. at 260. The
appellate court stated , ― A t most, the comments indicate that the defense may be attempting to
distort the jury ‘ s view of the evidence through clever argument. ‖ Id. While it did ― not condone
the prosecutor ‘ s actions, ‖ the court found the severity of the misconduct small. Id.
Here, while we condemn Putman ‘ s accusation and there were no measures taken to
ameliorate it, the evidence of Wreyford ‘ s intoxication, the main contested fact issue, is pretty

strong. We conclud e that the conduct had no or little effect. See id. at 259

– 60. We hold that

there is no reversible error here.

We affirm the trial court ‘ s judgment.

Josh R. Morriss, III Chief Justice

Date Submitted: February 9, 2011 Date Decided: Fe bruary 16 , 2011

Do Not Publish

v. Palmer , 37 F.3d 1080, 108 6 (5th Cir. 1994) (comment that defense attorney wanted to ―confuse‖ jury and ―throw up a smoke screen‖ did not require reversal); Un ited States v. Ortiz

- Arrigoitia , 996 F.2d 436, 440 (1st Cir. 1993) ( prosecutor ‘s statements to jury that defense attorneys ― want like to scram ble your heads, confuse you‖ and ― wa nted to confuse your head‖ no t so prejudicial to require reversal).