Opinion
No. 08-01-00287-CR
March 20, 2003 DO NOT PUBLISH
Appeal from the 168th District Impact Court of El Paso County.
Before Panel No. 1: LARSEN, McCLURE, and CHEW, JJ.
OPINION
Esmeralda Ruiz appeals her conviction for the possession of marijuana over 50 pounds but less than 2,000 pounds. A jury found Appellant guilty and assessed a punishment of 3 years' and 6 months' imprisonment. Appellant filed a motion for new trial and after a hearing, the trial court denied the motion. Appellant timely appealed. Appellant brings three issues for review: (1) whether the trial court erred in denying her request for a "no-adverse-inference" punishment instruction regarding her failure to testify; (2) whether the trial court erred in not taking corrective action when the prosecutor improperly commented during closing argument in the punishment phase of the trial on her failure to testify; and (3) whether the trial court erred in denying Appellant's motion for new trial based on Issues One and Two. We reverse and remand the cause to the trial court for a new sentencing proceeding only. On September 16, 2000, Appellant was the driver and sole occupant of a blue pickup truck, attempting to cross the Bridge of the Americas, a port of entry into El Paso, Texas from Ciudad Juarez, Mexico. At the initial inspection, the inspection officer identified the pickup truck's license plate as a "lookout vehicle" and directed Appellant to a secondary inspection station for a search of the vehicle. During the search, inspection officers removed the truck's bed liner and located 93.15 pounds of marijuana inside the false bed of the truck. Appellant pled not guilty to the charge of possession of more than 50 pounds but less than 2,000 pounds of marijuana. At the guilt/innocence phase of the trial, Appellant testified in her own defense. Appellant stated that she was getting ready to go to work that evening when she received a call from her sister, informing her that their mother had become very ill. Appellant left El Paso and drove to Juarez in her car to visit her mother. When Appellant arrived, she took her mother to buy medicine and then brought her home. Appellant told her mother that she was leaving because she needed to get to work. When she got into her car, she found that it would not start up. Her mother's boyfriend examined the car and told her that there was a problem with the battery. Appellant went back inside and called Andy Gonzalez, a friend she had known for four or five months, to ask if he would lend her his car. Appellant did not notice anything unusual about his truck and Appellant denied having any knowledge that it contained marijuana. Appellant testified to no further contact with Andy Gonzalez. The jury found Appellant guilty of the offense alleged and after a punishment hearing sentenced Appellant to three years and six months' confinement. In her first issue for review, Appellant complains that the trial court erred in refusing her request for a "no-adverse-inference" instruction in the punishment charge regarding her right not to testify. Though Appellant elected to waive her Fifth Amendment right against self-incrimination when she testified during the guilt/innocence phase of the trial, Appellant argues that she was entitled to a no-adverse-inference instruction concerning her failure to testify during the punishment phase. Appellant argues the trial court's action abridged her guaranteed right under the Fifth Amendment to the United States Constitution. We agree. A criminal defendant cannot be compelled to be a witness against herself. U.S. CONST. AMEND. V, cl. 3. A defendant's right not to testify continues beyond conviction until after a defendant has been sentenced. Beathard v. State, 767 S.W.2d 423, 432 (Tex.Crim.App. 1989); Brown v. State, 617 S.W.2d 234, 236-37 (Tex.Crim.App. 1981). Further, a defendant has a right to a no-adverse-inference instruction, which concerns the fact a defendant elects not to testify, at the punishment stage of the trial. White v. State, 779 S.W.2d 809, 828 (Tex.Crim.App. 1989), cert. denied, 495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990); Beathard, 767 S.W.2d at 432; Brown, 617 S.W.2d at 238. A defendant waives the right to a no-adverse-inference instruction unless she either requests that the trial court add the instruction to its charge at the punishment stage or objects to the omission of such instruction. See Brown, 617 S.W.2d at 238. Here, the record shows that Appellant objected to the omission of the no-adverse-inference instruction in the punishment charge and orally requested such instruction. The trial court denied Appellant's objection, reasoning that Appellant's Fifth Amendment waiver during the guilt/innocence stage of the trial continued into the punishment stage. The trial court's denial of the instruction was erroneous. Finding error, we must now determine whether such error is reversible. We reverse upon a finding of error, unless we determine beyond a reasonable doubt that the error did not contribute to Appellant's punishment. TEX.R.APP.P. 44.2(a). Since this is a case of charging error with timely objection, we reverse only if the error was calculated to injure the rights of Appellant, i.e. there must be some harm to the accused from the error. See White, 779 S.W.2d at 828, citing Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) (op. on reh'g); Ulloa v. State, 901 S.W.2d 507, 512 (Tex.App.-El Paso 1995, pet. ref'd); De La Paz v. State, 901 S.W2d 571, 580 (Tex.App.-El Paso 1995, pet. ref'd). Rule 44.2(a) requires this Court to focus not on the weight of other evidence of guilt, but on whether the error might have prejudiced the jurors' decision-making. See Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App. 1989). We must examine the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, and its probable collateral implications. Id. at 587. Further, we must also determine whether declaring the error harmless would encourage the State to commit the error again with impunity. Id.; see Ulloa, 901 S.W.2d at 514. In the instant case, the State concedes the trial court erred in omitting the punishment instruction, but argues that no harm beyond a reasonable doubt resulted from the trial court's omission of the requested charge. We are unable to conclude beyond a reasonable doubt that no harm came to Appellant by the trial court's failure to give the requested instruction. At the punishment phase of Appellant's trial, the State presented one witness, Detective Gerald Humphrey of the El Paso Police Department's Narcotics Division. Mr. Humphrey explained how "mules," individuals hired to smuggle drugs into the country, are given small amounts of drugs at the start. Once they gain the confidence of the dealers, they are given bigger loads to smuggle into the country. Mr. Humphrey testified that the value of ninety-three pounds of marijuana was approximately $23,000, and that based on his experience, this was an average size load. Though Appellant did not testify at the punishment hearing, she did offer the testimony of her sisters, Blanca and Corral Ruiz, and Probation Officer Rebekah Mejia. Blanca Ruiz testified that Appellant is a single mother with three children, ages ten months, two, and four. Ms. Ruiz stated that Appellant was a very responsible and good mother. Ms. Ruiz stated that she and the Appellant lived together and helped each other with caring for their children. Ms. Ruiz had never known Appellant to be in trouble with the law, arrested for any reason, or ever convicted of a felony. Ms. Ruiz asked the jury to consider probation and to give her a chance to do something good in her life and for her children who need her. Appellant's sister, Corral Ruiz, also testified that Appellant was a great mother to her children, has never been in trouble, and that her children needed her. Ms. Corral Ruiz also stated that Appellant was a great student, but left school when she became pregnant. Probation Officer Rebekah Mejia explained to the jury the possible terms and conditions of community supervision. The State cross-examined Ms. Mejia as to how closely a probationer is supervised after being released into the community. Ms. Mejia testified that the average probation officer handles an average case load of 190 probationers. She acknowledged that many drug offenders stop reporting to their probation officer over a period of months, quit paying their financial obligations, and stop performing their community service requirements. On redirect examination, defense counsel asked Ms. Mejia what were some of the indicators that an individual will be a good probationer and make it through the program. Ms. Mejia replied that she looks at their willingness to comply with the conditions of probation, whether they are sorry for their offense and their situation, whether it is an instant offense, and if they have never before been in trouble. In her closing argument, the State prosecutor argued in pertinent part as follows:
The probation officer came up before you and told you that, yes, people are placed on probation, and I believe her words were they actually do well when they're sorry for the offense that they committed.
And defense counsel tried to solicit out of her that numerous people are placed on probation, that they plead in front of the judge, and yes, they plead.
They acknowledge that they did something wrong and they come before the judge and they say, I did something wrong, and please I will now change.'Appellant's counsel objected, arguing that the State was commenting on Appellant's right not to testify in the punishment phase.
The trial court overruled the objection.
The State prosecutor then argued as follows:
She has admitted no guilt for this offense.
She has not taken responsibility for this at all.
Other people come up here and they take responsibility for the wrongs they have committed.
She has not done that.
And I ask you to take that into consideration when you go back to the jury room.
She took no responsibility for what she did.Appellant's counsel again objected on grounds that the State was commenting on Appellant's right not to testify and this objection was overruled. At the close of final argument, the prosecutor asked the jury to consider imposing a sentence of two years' confinement, rather than the maximum sentence of twenty years. The jury, however, assessed Appellant's punishment at confinement for a period of three years and six months. At the punishment phase, the State introduced evidence from Detective Humphrey on the use of "mules" to smuggle marijuana into the United States. Detective Humphrey indicated that in his opinion this was an average, rather than small load, which the State suggested was support for the inference that Appellant had committed a similar offense in the past without arrest. We find that the State's evidence placed Appellant in a position in which the jury would expect her to counter the State's assertion that she had smuggled marijuana in the past. The State's closing argument concerning Appellant's failure to take responsibility for the offense or to plead as others do, i.e. to state, "I did something wrong, and please I will now change'" emphasized the trial court's error. We also find that the two punishment witnesses who testified about Appellant only raised the jury's expectation to hear similar evidence of contrition directly from Appellant, which increased the already substantial risk that it would penalize Appellant for her silence. See Ulloa, 901 S.W.2d at 513. We cannot conclude beyond a reasonable doubt that the error here did not contribute to the sentence received. Accordingly, we sustain Appellant's Issue One. Since Issue One is dispositive, we do not address Appellant's remaining issues. We reverse the trial court's judgment and remand the cause to the trial court for a new sentencing proceeding only. See TEX.CODE CRIM.PROC.ANN. art. 44.29(b)(Vernon Supp. 2003).