Opinion
05-22-00332-CR
06-26-2023
RONALD WAYNE MILLER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F-2000318-H
Before Justices Partida-Kipness, Reichek, and Miskel
MEMORANDUM OPINION
AMANDA L. REICHEK JUSTICE
Ronald Wayne Miller appeals his conviction for unlawful possession of a firearm by a felon. In a single issue, appellant contends the trial court erred in allowing the prosecutor to make an improper jury argument. We affirm the trial court's judgment.
During closing argument in the guilt/innocence phase of appellant's trial, defense counsel noted to the jury that the State did not call several potential witnesses to testify. At one point, defense counsel argued,
Where are those other witnesses? What would they have said if they were to be right here in front of you all? Do they convince you? I submit to you that we are asking for a verdict of not guilty. Thank you.
In rebuttal, the prosecutor argued,
And now I want to point out some things the Defense argued about. They're good defense lawyers. They're very good. And they are trying to pull a couple of defense lawyer tricks with you, right, when they say
Defense counsel interrupted to object that the prosecutor was trying to "strike at the defendant over the shoulder of counsel." The prosecutor responded that it was argument, and the trial court said to "move on." The prosecutor continued, telling the jury the State chose to call certain witnesses, and to not call others, because they wanted to present the jury with the witnesses they believed were the most impartial.
Appellant contends the prosecutor's use of the phrase "defense lawyer tricks" was an improper attack on his counsel's character. Permissible jury argument generally 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. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010). When a prosecutor makes uninvited and unsubstantiated accusations of improper conduct directed toward defense counsel in an attempt to prejudice the jury against the defendant, it is referred to as "striking a defendant over the shoulders of his counsel." Whitney v. State, 396 S.W.3d 696, 704 (Tex. App.-Fort Worth 2013, pet. ref'd). We review a trial court's ruling on an objection asserting improper jury argument for an abuse of discretion. Id. at 705.
Although the word "tricks" may have a negative connotation, we do not view the complained of argument as an attack on defense counsel's character. Instead, the prosecutor was merely responding to defense counsel's argument in which he suggested the State strategically chose not to call certain witnesses and asked the jury to question why. If the defense invites argument, it is appropriate for the State to respond. Swarb v. State, 125 S.W.3d 672, 686 (Tex. App.-Houston [1st Dist.] 2003, pet. dism'd). Use of phrases such as "defense tactics," "smoke screens," "novel tactics," "rabbit trails," and "classic defense technique" have been consistently upheld as proper argument. See id; see also Love v. State, 533 S.W.2d 6, 11 (Tex. Crim. App. 1976); Hosey v. State, 760 S.W.2d 778, 783 (Tex. App.- Corpus Christi 1988, pet. ref'd). We conclude the complained of statement was properly within an invited argument and the trial court did not abuse its discretion is refusing to sustain appellant's objection. See Swarb, 125 S.W.3d at 686. We resolve appellant's sole issue against him. We affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.