COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00563-CR

JOSEPH L. HAWKINS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Joseph L. Hawkins of aggravated robbery with a 

deadly weapon, and the trial court, finding the enhancement paragraph true, 

sentenced him to serve thirty-five years’ confinement and to pay a $2,000 fine. 

In his sole point, Appellant contends that the trial court erred by denying his 

motion for mistrial after the prosecutor went outside ―all acceptable areas of jury 

argument by urging the jury to shift the burden of proof from the State to the 

 

1See Tex. R. App. P. 47.4.
2

defense.‖ Because the complained-of argument was not improper, we affirm the 

trial court’s judgment.

Appellant and another man came into the apartment where Cheryl Jones 

lived with her daughter Tosha. According to Jones, she, Tosha, and Ivan, one of 

Jones’s three sons, were at the apartment when the two men entered and 

demanded $10,000 that they claimed Michael, another of Jones’s sons, had. 

Jones testified that Appellant had a firearm.

Tosha testified that the men ransacked the apartment while asking for the 

money and for her brother Michael. Eventually, the two men left, but not emptyhanded. They took with them various items from the apartment, including a Wii 

game system and Tosha’s laptop computer.

Ivan testified that two men came into the apartment, asking, ―Where’s the 

money?‖ Ivan also testified that the men thought Michael lived at the apartment 

and kept ―large amounts of cash on him.‖

Jones also testified that before she identified Appellant in a photographic 

lineup at the police station, Michael showed her a picture on MySpace of 

someone he thought might have been involved in the robbery. The MySpace 

picture was that of Appellant. Before Tosha identified Appellant in a photo 

lineup, Michael also showed her a picture of Appellant and told her that he 

thought the man in the photograph might have been involved in the robbery. 

Ivan’s testimony was similar to that of Tosha. Michael did not testify at trial.

In closing argument, defense counsel stated, ―And here’s what’s 

interesting is, where is Mike? Why hasn’t Mike testified in this trial today if he’s 
3

the person that looked this up on MySpace?‖ Defense counsel also argued,

―Where is Michael Taylor? What does he have to hide? We have no burden of 

proof. Proof beyond a reasonable doubt goes to the State of Texas. Where is 

Michael Taylor?‖

The prosecutor argued in its final closing argument,

The Defense has no burden. They do not have to do anything. But 

if they wish to have a witness here, they have as much subpoena 

power as the State does. You saw that with Detective Raynesford 

who they brought in. If they want someone here, they can bring him

here. If they thought Michael had something to contribute, they 

could bring him in.

You heard from these witnesses what role—

Appellant objected that ―[t]hat’s outside the record, and also that’s an 

attempt to shift the burden of proof.‖ The trial court sustained the objection and 

instructed the jury to disregard the statement of the prosecutor. Appellant moved 

for a mistrial, and the trial court denied the motion. The prosecutor then argued 

to the jury, ―They have subpoena power. They can require it.‖ Appellant did not 

object to this statement.

Appellant’s objection to the jury argument was, and his point on appeal is,

two-fold: that the argument was outside the record and that it was an attempt to 

shift the burden of proof. We uphold the trial court’s ruling.

To be permissible, the State’s jury argument must fall within one of the 

following four general areas: (1) summation of the evidence; (2) reasonable 
4

deduction from the evidence; (3) answer to argument of opposing counsel; or 

(4) plea for law enforcement.2

When a trial court sustains an objection and instructs the jury to disregard 

but denies a defendant’s motion for a mistrial, the issue is whether the trial court 

abused its discretion by denying the mistrial.3 Only in extreme circumstances, 

when the prejudice caused by the improper argument is incurable, that is, ―so 

prejudicial that expenditure of further time and expense would be wasteful and 

futile,‖ will a mistrial be required.4 In determining whether a trial court abused its 

discretion by denying a mistrial, we balance three factors: (1) the severity of the 

misconduct; (2) curative measures; and (3) the certainty of conviction absent the 

misconduct.5

Whether Appellant thought Michael had something to contribute was 

outside the record. But the fact that a defendant in a criminal trial has subpoena 

power is a correct statement of the law and an appropriate response to 

Appellant’s argument.

6

 As the record before us stands, merely informing the jury 

 

2

Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992), cert. 

denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. 

Crim. App. 1973).

3Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004).

4

Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 

2003), cert. denied, 542 U.S. 905 (2004).

5Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex. 

Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

6See Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000).
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of the defendant’s subpoena power without more is not an attempt to shift the 

burden of proof onto the shoulders of the defense. The trial court responded to 

the improper argument that was outside the record by promptly instructing the 

jury, thereby curing any harm caused by the improper argument.7 The trial court 

did not abuse its discretion by denying Appellant’s motion for mistrial on this 

ground.

But Appellant does not explicitly argue that the statement outside the 

record was so egregious that its harm could not be cured by the instruction to 

disregard. Instead, Appellant’s motion for mistrial and his argument on appeal 

are predicated on the complaint that the State was attempting to place the 

burden of proof on him. Because the State’s argument was not an attempt to 

shift the burden of proof, we hold that the trial court also did not abuse its 

discretion by denying Appellant’s motion for mistrial on this ground. We therefore 

overrule Appellant’s sole point and affirm the trial court’s judgment.

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: November 3, 2011

 

7See Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007).