Opinion
No. 13-08-259-CR
Opinion delivered and filed February 11, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the County Court at Law No. 3 of Collin County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and VELA.
MEMORANDUM OPINION
A jury convicted appellant, Caroline Kathleen Callaway, of the offense of misdemeanor driving while intoxicated (DWI). See TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2003). The court assessed punishment at confinement for ninety days in jail, plus an $850.00 fine. The sentence was suspended, and she was put on community supervision for one year. In five issues, she argues the court erred by 1) overruling her objection to the State's closing argument, 2) denying her request for a jury instruction, and 3) failing to exclude statements she made to the arresting officer. We affirm.
I. FACTUAL BACKGROUND
On August 14, 2007, Callaway drove her Volkswagen to a bar called "Martini Park" in Plano, Texas. There, she drank three glasses of red wine, and at 10:50 p.m., began driving home. Ten minutes later, she pulled into the parking lot of a 7-Eleven on Dallas Parkway. About 1:30 a.m. the following morning, Frisco police officer Joseph Robin stopped at the 7-Eleven and saw Callaway sitting in the driver's seat of a Volkswagen. The vehicle was running with the driver's side window down, and Callaway was the only occupant. Although she "appeared to be asleep," Callaway was "slumped over," and her hands were in her purse. Officer Robin spoke to Callaway but could not wake her up. He testified that when he opened her door, "she seemed to wake up at that point and then immediately pass[ed] back out." He patted her on the back, and eventually she woke up. He asked her several times to exit the vehicle, but she did not comply. After asking her several times if she had been drinking, Callaway answered affirmatively. When she got out of the vehicle, he asked her how much she had to drink. She said, "[s]everal" and stated that she had been drinking red wine. When he searched her for weapons, "she placed her arms out at her side" and said, "[A]irplane — or airport." When he asked her what she was doing, she said, "[T]his is what you do at the airport." When Officer Robin asked her to do some field-sobriety tests, she refused and told him she wanted a lawyer. Officer Robin testified that Callaway had "bloodshot" eyes, "slurred speech," and the smell of alcohol on her breath. She told him she had come from Martini Park and that she had "pulled into the 7-Eleven parking lot because she realized she was too drunk to drive, and to sleep it off." A half-empty bottle of wine was found in her vehicle. At trial, when asked whether appellant was intoxicated, Officer Robin stated "my opinion was that she was intoxicated. She was not able to operate a motor vehicle safely." On direct examination, defense counsel asked Callaway whether she remembered telling Officer Robin that she was intoxicated. Callaway replied "yes, I do."II. JURY ARGUMENT
By her first and second issues, Callaway contends the trial court erred by overruling her objection to a remark made by the State during closing argument, and that the failure to sustain the objection deprived her of the right to confront her accusers under the Confrontation Clause and the Sixth Amendment to the United States Constitution. We will address both issues together.A. Standard of Review
"`It is the duty of trial counsel to confine their arguments to the record; reference to facts that are neither in evidence nor inferable from the evidence is therefore improper.'" Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (quoting Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973)). The four permissible areas of jury argument are: "(1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement." Id. "[E]rror exists when facts not supported by the record are interjected in the argument, but such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper." Id. "In determining whether jury argument is extreme or manifestly improper, we look at the entire record of final arguments to determine if there was a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial." Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1993). We must consider counsel's remarks during closing argument in the context in which they appear. Drew v. State, 743 S.W.2d 207, 220 (Tex. Crim. App. 1987); Ayala v. State, 267 S.W.3d 428, 433 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd). The Sixth Amendment protects a defendant's right to confront and cross-examine witnesses against him. U.S. CONST. amend VI; Davis v. Alaska, 415 U.S. 308, 315-16 (1974). This right is violated when appropriate cross-examination is limited. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). In Crawford v. Washington, the Supreme Court stated that the Confrontation Clause of the Sixth Amendment bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination." 541 U.S. 36, 53-54 (2004).B. Context of the Complained-Of Remark
During Callaway's guilt-innocence closing argument, her counsel argued to the jury:I'm not here to tell you that I support her [Callaway's] decision to pull off the highway and go to sleep at 1:30 in the morning or eleven o'clock at night. May not be the smartest thing in the world, but it's not against the law to do it. Y'all know that it's done a lot. . . . It happens a lot. It is not against the law.
And, in fact, law enforcement sometimes encourages it so that people don't fall asleep at the wheel and cause accidents. She [appellant] said I was trying to do the right thing. I was trying to do the right thing. And now, the State of Texas wants to take her freedom away from her for doing the right thing.After counsel finished his closing argument, the prosecutor argued, in relevant part:
Ladies and gentleman, this case is about taking responsibility, about taking responsibility at the beginning and at the end. . . . Is this right? Is this fair and is this justice for someone to drive from the Martini bar down — up Dallas Parkway, loop around, and stop at 7-Eleven because she was too drunk to drive?
* * *
You don't reward the Defendant because she barely sideswiped a couple of cars.To the italicized remark, defense counsel objected as follows: "There is absolutely no evidence about sideswiping cars. That's outside the record. That's unsworn testimony. I object. It denies us our right to cross-examine and confront witnesses." In response to the objection, the prosecutor argued, "[T]he State is not alleging that this did happen. It's an argument of trying to reward the defendant based upon a reward for not doing that." The trial court overruled the objection, and the prosecutor continued his argument to the jury:
Do you reward her [appellant] for driving while intoxicated up to a point at 7-Eleven? Do you reward her for driving northbound on Dallas Parkway, pulling over because she was too drunk to drive? Do you reward her because she's asleep at the wheel at 7-Eleven at 1:25 when she has claimed that she's not intoxicated? According to her on the stand. You do not reward her for these actions by letting her go. You hold her responsible for her actions. She said she was drunk. She said she was intoxicated. She said she drove to 7-Eleven. You hold her responsible because in Collin County we hold people responsible for their actions.
* * *
Do you or would you reward a complete drunk person just because they got to their home? They committed the offense. The elements were met. Beyond a reasonable doubt, ladies and gentlemen. Beyond a reasonable doubt. She's guilty of driving while intoxicated.
C. Analysis
The prosecutor's remark that Callaway sideswiped two cars on her way from Martini Park to the 7-Eleven was clarified when he explained that "the State is not alleging that this did happen. It's an argument of trying to reward the defendant based upon a reward for not doing that." Thus, the prosecutor was not interjecting facts not supported by the record, and he was not referring to testimonial statements of a witness who did not appear at trial. Such testimony is barred by the Confrontation Clause. See Crawford, 541 U.S. at 53-54. Earlier, defense counsel had argued to the jury that "law enforcement sometimes encourages it [drivers to pull off the highway] so that people don't fall asleep at the wheel and cause accidents." Defense counsel argued that appellant "was trying to do the right thing[]" by stopping at the 7-Eleven and that the State wanted to take appellant's "freedom away from her for doing the right thing." Put in context, the remark was an attempt to argue to the jury that just because a driver does the right thing by pulling off the road to sleep, thereby avoiding a serious collision, the driver should not be rewarded by a verdict of not guilty. Accordingly, we conclude that the prosecutor was answering defense counsel's argument and making a plea for law enforcement, both of which constitute proper jury argument. See Brown, 270 S.3d at 570 (stating that "answer to the argument of opposing counsel" and "plea for law enforcement" constitute proper jury argument). Although it is possible to construe the objected-to remark as being improper when taken out of its full context, the remark, when put it context, is not improper. Even if the remark could be viewed as improper, we cannot conclude that there was a willful and calculated effort to deprive Callaway of a fair and impartial trial. See Cantu, 939 S.W.2d at 633. Thus, the trial court did not err by overruling the objection. Issues one and two are overruled.II. JURY INSTRUCTION ON CORROBORATION
In issue three, Callaway contends the trial court erred in not instructing the jury about the corpus delicti rule for the corroboration of a defendant's extrajudicial admissions. After both sides rested and closed, defense counsel requested the trial court to include an instruction in the charge "that the admission of the defendant cannot be used by itself to establish the element, corpus delicti of an offense, and that the defendant's admission has to be corroborated before it can be used to establish any element of the offense." The trial court denied the requested instruction.A. Standard of Review
Appellate review of an error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1991). First, we determine whether there was error in the charge. Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh'g). If so, "the next step is to make an evidentiary review . . . as well as a review of any other part of the record as a whole which may illuminate the actual, not just theoretical, harm to the accused." Id.B. Applicable Law
The corpus delicti rule is a rule of evidentiary sufficiency, meaning that an extrajudicial confession of wrongdoing, standing alone, is not enough to support a conviction; other evidence must exist showing that a crime has in fact been committed. Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000) (citing Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997)). "This other evidence is commonly referred to as the `corpus delicti.'" Id. "This other evidence need not be sufficient by itself to prove the offense: `all that is required is that there be some evidence which renders the commission of the offense more probable than it would be without the evidence.'" Id. (quoting Williams, 958 S.W.2d at 190). "[A] trial judge need not instruct the jury on corroboration when the corpus delicti is established by other evidence." Baldree v. State, 784 S.W.2d 676, 686-87 (Tex. Crim. App. 1989). The corpus delicti of DWI "is that someone drove or operated a motor vehicle in a public place while intoxicated." Layland v. State, 144 S.W.3d 647, 651 (Tex. App.-Beaumont 2004, no pet.).C. Analysis
Appellant testified that she drove from Plano to a 7-Eleven, where she parked her vehicle. Officer Robin testified that this 7-Eleven is located on a public road. Accordingly, evidence other than Callaway's extrajudicial admission established the first two elements of the corpus delicti of the offense. See Layland, 144 S.W.3d at 651. Other than Callaway's extrajudicial admissions about her intoxication, there is some other evidence which renders the intoxication element of the corpus delicti more probable than it would be without the evidence: (1) Callaway testified she drank three glasses of red wine and then left Martini Park about 10:50 p.m., arriving at the 7-Eleven about 11:00 p.m.; (2) at 1:30 a.m., Officer Robin saw Callaway slumped over in the driver's seat of her vehicle; (3) Callaway did not wake up when Officer Robin tried to wake her; (4) when he opened her door, "she seemed to wake up at that point and then immediately pass[ed] back out;" (5) he asked her several times to exit the vehicle, but she did not comply; (6) when he searched her, "she placed her arms out at her side" and said, "[A]irplane — or airport;" (7) she had bloodshot eyes, slurred speech, and her breath smelled of alcohol; (8) a half-empty bottle of wine was in her vehicle; and (9) Officer Robin testified that, in his opinion, she was intoxicated and not able to operate a motor vehicle safely. Because the other evidence, independent of Callaway's admission, rendered the corpus delicti of DWI more probable than it would be without the evidence, we hold that the trial court did not err in refusing to instruct the jury on independent corroboration of her admission to Officer Robin that she was intoxicated. Issue three is overruled.IV. INVOCATION OF CONSTITUTIONAL RIGHTS
In issue four, Callaway contends that the trial court erred in refusing to exclude evidence showing that she had invoked her right to counsel and her right to remain silent. Defense counsel filed a pre-trial motion in limine, requesting the trial court to order the prosecution not to offer into evidence: 1) any statements made by appellant following the invocation of her right to counsel or her right to remain silent; and 2) any testimony relating to any such statements. At a pre-trial hearing, the trial court denied the motion as it pertained to appellant's invocation of these rights during her encounter with Officer Robin at the 7-Eleven.A. Standard of Review and Applicable Law
We review a trial court's decision to admit or exclude evidence under an abuse-of-discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Id. "Under the Fifth Amendment, a right to counsel exists as a prophylactic protection of the right to remain silent; in other words, it exists to counteract the inherent pressures of custodial interrogation." Garcia v. State, 191 S.W.3d 870, 877 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (citing U.S. CONST. amend. V; McNeil v. Wisconsin, 501 U.S. 171, 176 (1991)). Once a suspect asserts his or her Fifth Amendment right, he or she cannot be interrogated outside the presence of counsel unless the suspect initiates the contact. Id. (citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). "An individual may not be penalized for exercising his Fifth Amendment rights when he is under police investigation; evidence of his invocation of his right to counsel is inadmissible as evidence of guilt." Kalisz v. State, 32 S.W.3d 718, 721 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991)). Courts have also held that the invocation of the right to remain silent cannot be admitted as evidence of guilt. See Cooper v. State, 961 S.W.2d 222, 226 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (stating that "[e]vidence of invoking the right to terminate an interview is inadmissible as evidence of guilt") (citing Hardie, 807 S.W.2d at 322). Here, the evidence showed that Callaway was under investigation by Officer Robin. Therefore, evidence of her invocation of her right to counsel, which includes her right to remain silent, is inadmissible as evidence of guilt. See Kalisz, 32 S.W.3d at 721; Cooper, 961 S.W.2d at 226.B. Preservation of Error
Callaway complains that during the State's direct-examination of Officer Robin, the State elicited testimony that she invoked her right to counsel. Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of error, and states, in part:(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context;TEX. R. APP. P. 33.1. "The complaining party bears the responsibility of clearly conveying to the trial judge the particular complaint, including the precise and proper application of the law as well as the underlying rationale." Pena v. State, 285 S.W.3d 459, 463-64 (Tex. Crim. App. 2009). "To avoid forfeiting a complaint on appeal, the party must `let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.'" Id. at 464 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). Here, no objection was made to Officer Robin's testimony. Thus, Callaway did not clearly convey to the trial court "the precise and proper application of the law as well as the underlying rationale." See id. at 463-64. Furthermore, "[a] motion in limine, whether granted or denied, preserves nothing for appellate review." Griggs v. State, 213 S.W.3d 923, 926 n. 1 (Tex. Crim. App. 2007). Therefore, Callaway did not preserve error. See TEX. R. APP. P. 33.1. Even if Callaway had objected to Officer Robin's complained-of testimony and received an adverse ruling, any error was harmless. "`[O]verruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. This rule applies whether the other evidence was introduced by the defendant or the State.'" Reyes v. State, 267 S.W.3d 268, 274 (Tex. App.-Corpus Christi 2008, pet. ref'd) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)). Here, during redirect-examination of appellant and during cross-examination of Officer Robin, defense counsel elicited testimony that appellant invoked her right to counsel. No objection was made to this testimony. Thus, any error in admitting Officer Robin's testimony that appellant invoked her right to counsel was rendered harmless because the jury heard testimony elicited by defense counsel that appellant invoked her right to counsel. See Reyes, 267 S.W.3d at 274 (holding that even if trial court had overruled accused's objection that audio portion of a videotape allowed the jury to hear him invoke his rights to counsel and to remain silent, error would have been harmless because jury heard testimony that accused invoked these rights). Issue four is overruled. In issue five, Callaway contends the trial court erred in refusing to exclude statements she made to Officer Robin in response to his interrogation of her after she invoked her right to counsel.
A. Applicable Law
"The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444 (1966). "For Miranda safeguards to attach, two threshold issues must be met: 1) the suspect must have been `in custody,' and 2) the police must have `interrogated' the suspect." Little v. State, 853 S.W.2d 179, 183 (Tex. App.-Corpus Christi 1993, no pet.). "[T]he term `interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980) (footnotes omitted). The Fifth Amendment "bar[s] police-initiated interrogation of an accused who, in the context of custodial interrogation, has previously asserted his right to counsel during such interrogation, unless the accused's counsel is actually present." Hughen v. State, Nos. PD-1123-08, 1124-08, 2009 WL 3189187, at *4 (Tex. Crim. App. Oct. 7, 2009) (citing Minnick v. Mississippi, 498 U.S. 146, 153 (1990)). Article 38.22 of the code of criminal procedure generally precludes the use of statements that result from custodial interrogation absent compliance with its procedural safeguards. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2 (Vernon 2005). However, Article 38.22, Section 5 specifically exempts "a statement that does not stem from custodial interrogation. . . ." Id. § 5. Thus, if appellant's statements did not stem from custodial interrogation, neither Miranda nor Article 38.22 require their exclusion. Morris v. State, 897 S.W.2d 528, 531 (Tex. App.-El Paso 1995, no pet.) (citing Galloway v. State, 778 S.W.2d 110, 112 (Tex. App.-Houston [14th Dist.] 1989, no pet.)).B. Analysis
Callaway complains that the trial court should have excluded Officer Robin's testimony about: 1) "her refusal to perform the standardized field sobriety tests[;]" 2) "her denial that some bottles of wine found in her vehicle were opened[;]" 3) "her reference to Judge Burke as being her lawyer[;]" and 4) "her statements that `she was intoxicated' and that `she was too drunk to drive.'" We address each complaint separately.1. Refusal to Perform Field-Sobriety Tests
The record reflects that Callaway invoked her right to counsel after she refused Officer Robin's request to take the field-sobriety tests. Nevertheless, Callaway did not object when the prosecutor elicited testimony from Officer Robin that appellant refused to take the field-sobriety tests. Therefore, appellant did not preserve error. See TEX. R. APP. P. 33.1; Pena, 285 S.W.3d at 464. Accordingly, even if appellant had preserved this complaint for review, police requests for performing sobriety tests do not constitute interrogation. Smith v. State, 105 S.W.3d 203, 207 (Tex. App.-Houston [14th Dist.] pet. ref'd) (citing Kalisz, 32 S.W.3d at 721). Thus, assuming Callaway was in custody when Officer Robin asked her to take the field-sobriety tests, her response that she did not want to take them did not result from interrogation. See id. Because the "interrogation" predicate is not met, neither Miranda nor Article 38.22 require exclusion of appellant's refusal to take the field-sobriety tests. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5; Little, 853 S.W.2d at 183.2. Testimony About the Wine Bottles Found in Appellant's Vehicle
The record reflects that after Callaway requested an attorney, Officer Robin arrested her outside the 7-Eleven for DWI. Before he transported her to the police station, other officers searched her vehicle. When the prosecutor asked Officer Robin, "Were any items from her [Callaway's] vehicle placed on your patrol car?", he replied, "Yes, they were." When asked what those items were, Officer Robin stated, "It was a[n] empty box of Coors Light, and two bottles of wine. White Zinfandel wine. One was sealed closed and the other was open and half empty." When the prosecutor asked Officer Robin, "[Did] [t]he defendant say anything in response to seeing those items on your patrol vehicle?", he said:She responded and said that that's not open. And when she said that, I said — I looked at her and I said are you telling me that's not open, and she said, yes, the box is, but the Coors Light is not open. I said we're not referring to the Coors Light; I said we're referring to the bottle of wine.Appellant did not object when this testimony was elicited, and therefore did not preserve error. See TEX. R. APP. P. 33.1; Pena, 285 S.W.3d at 464. However, even if appellant had objected to this testimony and received an adverse ruling, the error would have been harmless because defense counsel cross-examined Officer Robin about what Callaway said when the wine bottles were displayed on his patrol car.
3. Appellant's Reference to Judge Burke as Her Lawyer
After Callaway was arrested, she was placed in the back seat of Officer Robin's patrol car. When the prosecutor asked the Officer if Callaway made any comments, he responded that she had made a reference to a city Judge in Frisco. When the prosecutor asked Officer Robin if appellant was "requesting anything at this point?", he said, "I believe she requested to speak with [the Judge]. And my response was how do you know [the Judge] and she said "he's my lawyer." Callaway did not object when this testimony was elicited, therefore error was not preserved. See TEX. R. APP. P. 33.1; Pena, 285 S.W.3d at 464. Even if Callaway had objected to this testimony and received an adverse ruling, any error would have been harmless. Defense counsel cross-examined Officer Robin about what appellant said when she was in his patrol car. No objection was made to this testimony. Thus, any error in admitting Officer Robin's testimony about what appellant said in response to his question about how she knew the Judge was rendered harmless because the jury heard the same or similar testimony elsewhere during the trial. See id.4. Appellant's Statements Regarding Her Intoxication Officer Robin testified on direct-examination that when Callaway got out of her vehicle, he asked her, among other questions, "[W]here are you coming from[?]." She told him she was coming from "Martini Park." He testified she "pulled into the 7-Eleven parking lot because she realized she was too drunk to drive, and she pulled into the parking lot to sleep it off." He also testified she "felt that she did the right thing by pulling into the parking lot because she was too drunk to drive." When appellant asked for a lawyer, Officer Robin stopped questioning her and placed her under arrest for DWI.
Appellant did not object when this testimony was elicited. Therefore, error, if any, is not preserved. See TEX. R. APP. P. 33.1; Pena, 285 S.W.3d at 464. Furthermore, appellant's statements to Officer Robin were made prior to the time she invoked her right to counsel. Even if appellant had objected to the complained-of testimony and received an adverse ruling, the error would have been harmless. During the guilt-innocence phase, defense counsel questioned appellant about what she told Officer Robin about her state of intoxication. No objection was made to this testimony. Thus, any error in admitting Officer Robin's testimony about what appellant said in response to Officer Robin's question about where she had been was rendered harmless because the jury heard the same or similar testimony elsewhere during the trial. See id. Issue five is overruled.V. CONCLUSION
We affirm the trial court's judgment.Although I concur with the result reached by the majority, I respectfully disagree with the conclusion that the State's remark during closing argument was not improper. Specifically, I disagree with the majority's conclusion that viewed in context, the State was simply asking the jury not to reward appellant for avoiding a serious collision in response to defense counsel's argument that appellant was "trying to do the right thing" by stopping at the 7-Eleven to sleep. I would conclude that the State's comment was improper and that the trial court erred; however, I would find the error harmless. Trial counsel's arguments must be confined to the record; therefore, it is improper for counsel to make reference to "facts" that are not in evidence or cannot be inferred from the evidence. "[E]rror exists when facts not supported by the record are interjected in the argument, but such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper." Here, the evidence showed that Officer Robin arrived at a 7-Eleven store and found appellant asleep, sitting in the driver's seat of her car, with the ignition on. Officer Robin woke up appellant, and she told him that she drove to the 7-Eleven parking lot to sleep because she realized she was too drunk to drive. In a tape recording of the encounter, appellant repeatedly told Officer Robin that she was intoxicated, and Officer Robin testified that appellant had lost her mental and physical faculties due to intoxication. On cross-examination, Officer Robin stated that he was "not aware of anything that transpired" before he found appellant asleep in her car. During closing argument, the State remarked that appellant should not be rewarded because she "barely sideswiped a couple of cars." The majority concludes that if taken in context, the State was merely asking the jury not to reward appellant for avoiding a serious collision in response to defense counsel's argument that appellant should not be punished for doing the "right thing." However, the State presented no evidence that appellant drove her car in an unsafe manner prior to Officer Robin's encounter with her; no evidence was offered showing that appellant "barely sideswiped a couple of cars" or that she avoided a serious collision. The comment was improper because the State made reference to facts that are not in evidence and that cannot be inferred from the evidence presented. I would conclude that the trial court erred by denying appellant's objection to the State's comment. However, the analysis does not end there. The error warrants reversal if appellant's substantial rights were affected. To determine whether the State's improper argument affected appellant's substantial rights, the following factors are balanced: (1) the severity of the misconduct; (2) any curative measures adopted; and (3) the certainty of the conviction absent the misconduct. "[I]n evaluating the severity of the misconduct, we must assess `whether [the] jury argument is extreme or manifestly improper [by] looki[ing] at the entire record of final arguments to determine if there was a willful and calculated effort on the part of the State to deprive [appellant] of a fair and impartial trial.'" In examining the severity of the remark, I note that the State explained to the trial court that it was not actually alleging that appellant "barely sideswiped a couple cars," but that it was attempting to respond to defense counsel's argument that appellant did the "right thing." Moreover, the State did not say that appellant performed any act, but instead attempted, albeit unsuccessfully, to emphasize that appellant should not be rewarded for avoiding a collision. Consequently, the severity of the misconduct was mild. After reviewing the entire record of the State's final argument, I conclude that there was no willful or calculated effort to deprive appellant of a fair and impartial trial. Although there was no curative measure taken by the trial court, the State, in the presence of the jury, attempted to clarify its remark by explaining that it did not mean to say that appellant had actually avoided sideswiping a couple of cars. "Although a prosecutor's self-corrective action might not carry the same weight as a trial court's instruction to disregard, it is nevertheless a relevant consideration in determining harm and can, in the appropriate circumstances, render an improper comment harmless." Here, the State's self-corrective action is relevant in determining the harm to appellant. Finally, the certainty of conviction was high, absent the improper comment. At trial, there was evidence that appellant had lost her mental and physical faculties and that she was sitting in the driver's seat of a car with the ignition on. Furthermore, appellant told Officer Robin that she was too intoxicated to operate her vehicle. Therefore, after reviewing the entire record and final arguments, as a whole, and balancing the appropriate factors, I conclude that the error was harmless because the State's comment did not affect appellant's substantial rights.
Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).
Id.
See id.
Id. at 572 (providing that improper argument is nonconstitutional in nature); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (holding that improper jury arguments are nonconstitutional violations analyzed pursuant to rule 44.2(b) of the Texas Rules of Appellate Procedure).
Brown, 270 S.W.3d at 572-73.
Id. at 573 (quoting Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)).
Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004).
See Brown, 270 S.W.3d at 572; Mosley, 983 S.W.2d at 259.