## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00115 - CR

ROBERT GARCIA JR. APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM THE 396TH DISTR ICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1321 858D

---------- 

### MEMORANDUM OPI NION 1

---------- A jury convicted Appellant Robert Garcia Jr. of delivery of a controlled substance, cocaine, of four grams or more but less than 200 grams, a first degree felony, and the trial court assessed his punishment at eighteen years’ confinement i n the Institutional Division of the Texas Department of Criminal
Justice. See Tex. Health & Safety Code Ann. § 481.112(d) (West 2010 )

. In two

1 See Tex. R. App. P. 47.4.2

points, Appellant argues that the trial court erred during final arguments (1) when it overruled his objection t o the prosecutor’s direct comment on his failure to testify and (2) when it overruled his objection to the prosecutor’s striking at the defendant over the shoulders of counsel. We affirm. The Evidence Robert Walsh, a narcotics detective, purchased cocain e from a person he met while conducting an undercover “street level” sting operation. Detective Walsh identified Appellant as the person to whom he gave $250 in exchange for eight grams of cocaine in a transaction that took plac e in an Arlington parking l ot.

Argument About Which Appellant Complains Both of Appellant’s points are based on arguments made by the prosecutor during final arguments . We present first portions of defense counsel’s arguments: [DEFENSE COUNSEL]: It is the height of arrogance to b ring one officer with no other form of evidence that was possible to be brought to you and nothing more and say, this is enough, trust us, we’re the government. Thereafter, defense counsel returned to the theme of the State’s relying on a single witness: [DEFENSE COUNSEL]: What we do know is that Detective Walsh makes his living lying, being an actor, misrepresenting, faking what he looks like, faking his voice, persuading people of things that are not true. He is trained to persuade you. Trust me, I’m the government. How arrogant is it that we don’t have to bring you any other evidence?3

So there’s literally no other evidence before you, including everything on this rail, for you to consider. I would suggest to you just the weight of all this makes it impossible to find the case beyond a reasonable doubt.

. 

### . . It is reasonable to require the government to do its job. It is reasonable to require the government to bring you different types of evidence so that you can compare the evidence in reaching y our decision on if they’ve proved their case as to each of those elements beyond a reasonable doubt. The failure to provide you with what is routine investigation and evidence in this case is a failure of the government to prove their case to you beyond a reasonable doubt. It’s a good thing you’re here. Defense counsel closed with these remarks: [DEFENSE COUNSEL]: It’s not enough. Protect the citizen who’s accused and protect all of our Constitutional rights. Thank you very much. In the prosecutor’s closing arguments, he made the following arguments that form the bases of Appellant’s complaints: [PROSECUTOR]: Now, how much is enough? I’ve been doing this a long time, and I wish just one time I would come in here to try a case and the Defense would say, you’ve got me. [DEFENSE COUNSEL]: Objection. This is a comment on failure to testify. This is also striking at the Defendant over the shoulder of counsel. This is a totally improper argument. THE COURT: Overruled. [PROSECUTOR]: What I’m point ing out, ladies and gentlemen, is it’s the Defense’s job to point out supposed inconsistencies. [DEFENSE COUNSEL]: Objection. This is a lessening of the burden. The Defense, as the Court has told the jury, has no job at all but to sit and be present.4

[PROSECUTOR]: I’ll withdraw that comment. THE COURT: All right. [PROSECUTOR]: But, ladies and gentlemen, you heard what the arguments were. [DEFENSE COUNSEL]: Excuse me, Your Honor. Did you, I’m sorry, sustain my objection? THE COURT: I did. [DE FENSE COUNSEL]: So then I must ask for a limiting instruction, please. THE COURT: The Court will disregard the last argument of [the prosecutor]. [DEFENSE COUNSEL]: The jury shall? THE COURT: The jury shall. I’m sorry. [DEFENSE COUNSEL]: Yes, sir . Then you know I have to ask for a mistrial. THE COURT: That’s denied.
Whether the Prosecutor Comment ed on Defendant’s Failure to Testify In Appellant’s first point, he argues that the trial court erred by overruling his objection to the prosecutors ’ direct comm ent on his failure to testify. The purpose of closing arguments is to facilitate the jury’s proper analysis of the evidence so as to arrive at a just and reasonable conclusion based solely
on the evidence. Barnes v. State , 70 S.W.3d 294, 308 (Tex. App.

— Fort Worth 2002, pet. ref’d). Permissible jury arguments by the State must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction5

from the evidence; (3) answer to the argument of opposing counsel; or (4 ) pleas for law enforcement. Felder v. State , 848 S.W.2d 85, 94

– 95 (Tex. Crim. App. 1992) , cert. denied , 510 U.S. 829 (1993). Appellate courts review an allegedly improper argument in the context of the entire argument. Mosley v. State , 686 S.W.2d 180 , 183 (Tex. Crim. App.
198 5 ). When the complaint is that a prosecutor commented on the defendant’s failure to testify, we review the language used from the jury’s standpoint. Nowlin v. State , 507 S.W.2d 534, 536 (Tex. Crim. App. 1974). If the prosecutor’s comments are not a direct attack on the defendant’s failure to testify, the language used must be such that the jury would have “necessarily and naturally” taken it as a comment on the defendant’s election not to testify. Montoya v. State , 744 S.W.2d 15, 35 (Tex. Crim. App. 1987) , cert. denied , 487 U.S. 1227 (1988). The prosecutor’s comment questioning how much was enough was in response to defense counsel’s closing assertion, “It’s not enough.” It was from that point that the prosecutor launched into o ther comments. We hold that the prosecutor’s arguments were in response to opposing counsel’s arguments. See
Felder , 848 S.W.2d at 94

– 95. We also hold the prosecutor’s argument was not a direct comment on Appellant’s failure to testify. The prosecutor r eferred to “the Defense” generically and not to Appellant specifically. His reference to “the Defense” was broad enough to encompass defense counsel, as distinguished from Appellant or6

defendants generally. Appellant asserts that the prosecutor’s subsequ ent
comment

— “it’s the Defense’s job to point out supposed inconsistencies”

— shows that the prosecutor “stepped in it again.” We disagree. That comment appears to be in response to defense counsel’s argument that it was “reasonable to require the governmen t to do its job.” We conclude it was not a comment on Appellant’s failure to testify. Finally, we hold it was not manifestly intended or of such a character that the jury would have necessarily and naturally taken it as a comment on Appellant’s failure to testify. The implication that the comment referred to the defendant’s failure to testify must be clear. See Bustamante v. State , 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). That the language might be construed as an implied or indirect allusion is insuf ficient. See id. The comment was not manifestly intended to comment on Appellant’s failure to testify. See i d. The prosecutor was not faulting Appellant for not taking the stand for the purpose of admitting his guilt. The prosecutor was telling the ju ry that no matter how strong a case he presented, in a contested trial, “ the D efen se” was never going to
concede it s case. The jury would not have necessarily and naturally taken the prosecutor’s argument as a comment on Appellant’s failure to testify. S ee i d. We overrule Appellant’s first point.7

Whether the Prosecutor Struck at Appellant over the Shoulders of Counsel In Appellant ’s second point, he contends the trial court erred by overruling his objection that the prosecutor had struck at him over th e shoulders of counsel. The “over

- the

- shoulder s - of

- counsel ” rule protects the defendant from improper character attacks on defense counsel. See Coble v. State , 871 S.W.2d 192, 205 (Tex. Crim. App. 1993) , cert. denied , 513 U.S. 829 (1994). Character
atta cks on defense counsel are improper because they unfairly inflame the jury against the accused. Wilson v. State , 7 S.W.3d 136, 147 (Tex. Crim. App. 1999). A prosecutor risks improperly striking at a defendant over the shoulders of counsel when the prosec utor refers to defense counsel personally and explicitly impugns defense counsel’s character. Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) , cert. denied , 526 U.S. 1070 (1999) ; Guy v. State , 160 S.W.3d 606, 617 (Tex. App.

— Fort Worth 2005, pe t. ref’d). The State may not accuse defense counsel of bad faith and insincerity. Fuentes v. State , 664 S.W.2d 333, 335 (Tex. Crim. App. [Panel Op.] 1984). We review a trial court’s ruling on an objection asserting improper jury argument for an abuse of
discretion. Lemon v. State , 298 S.W.3d 705, 707 (Tex. App.

— San Antonio 2009, pet. ref’d). The prosecutor’s comments were directed at “the Defense” generically and not at defense counsel personally. His comments, therefore, attenuate any personal impugn ing of defense counsel’s character. Nor did t he prosecutor impugn the character of defense counsel generally ; rather, t he prosecutor was8

trying to drive home the point that in a contested trial, the defense will not concede its case no matter how strong a case the prosecution brings. To the extent the prosecutor’s following comment about it being “the Defense’s job to point out supposed inconsistencies,” that argument broached accusing defense counsel generally of acting in bad faith and with insincer ity ; however, as noted above, this latter comment appears to have been in response to defense counsel’s argument that the State failed in its job of presenting sufficient
evidence. In any event, the trial court instructed the jury to disregard that
comment. We overrule Appellant’s second point. 2
Conclusion Having overruled both of Appellant’s points, we affirm the trial court’s judgment.

/s/ Anne Gardner ANNE GARDNER JUSTICE PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERE D: October 29, 2015

2 To the extent Appellant argues, in conjunction with his second point, that the State injected new facts outside the record, this was not Appellant’s objection at trial; accordingly, that particular complaint was not preserved for appeal. See Tex. R. App. P. 33.1(a).