Opinion
No. 2-04-139-CR
Delivered: April 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Criminal District Court No. 3 of Tarrant County.
PANEL A: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
MEMORANDUM OPINION
See Tex.R.App.P. 47.4.
I. Introduction
Appellant Jermal R. Scott appeals from his conviction by a jury for the offense of recklessly causing serious bodily injury to a child. See Tex. Penal Code Ann. § 22.04(a)(1) (Vernon 2003). In three issues, appellant argues that (1) the trial court erred by failing to direct a verdict because there is no evidence of either the manner in which the child was injured or appellant's mental state at the time, (2) the trial court erred by failing to direct a verdict because the evidence regarding appellant's culpable mental state is factually insufficient, and (3) the trial court erred by overruling appellant's objection to the prosecutor's improper argument suggesting that his interest in the case was the public's interest and thus superior to defense counsel's interest. We affirm.II. Background Facts
On December 17, 2001, Fort Worth Police Officer L.N. Carrell responded to a 911 call from 5316 Libbey in Fort Worth. Upon arriving, Officer Carrell met appellant, who told him that his daughter, K.S., was having a seizure. K.S. was taken to Cook Children's Hospital where she later died. The medical examiner ruled that the cause of death was blunt force trauma to the head, and appellant was charged with knowingly causing serious bodily injury to a child. See id. Appellant requested a jury charge on the lesser included offense of recklessly causing serious bodily injury to a child. See id. The trial court granted appellant's request. A jury found appellant guilty of the lesser included offense of recklessly causing serious bodily injury to a child and assessed his punishment at eleven years' confinement.III. Sufficiency of the Evidence
In his first and second issues, appellant argues that the trial court erred by failing to direct a verdict because the evidence regarding his culpable mental state at the time of the alleged offense was legally and factually insufficient. A defendant who requests a charge on a lesser included offense may not complain on appeal that the evidence failed to establish all the elements of the lesser offense. See State v. Lee, 818 S.W.2d 778, 781 (Tex.Crim.App. 1991), disapproved on other grounds, Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App. 1998); see also State v. Yount, 853 S.W.2d 6, 9 (Tex.Crim.App. 1993) (op. on reh'g) (holding that defendant who requested charge on lesser included offense is estopped from claiming on appeal that conviction of lesser included offense is barred by limitations). Although Lee dealt with a legal sufficiency challenge, several courts of appeals, including this court, have applied this rule to factual sufficiency challenges as well. See Otting v. State, 8 S.W.3d 681, 687 (Tex.App.-Austin 1999, pet. ref'd, untimely filed); Reaves v. State, 970 S.W.2d 111, 118 (Tex.App.-Dallas 1998, no pet.); Bisco v. State, 964 S.W.2d 29, 30 (Tex.App.-Tyler 1997, pet. ref'd); Taylor v. State, 947 S.W.2d 698, 702 (Tex.App.-Fort Worth 1997, pet. ref'd). Here, appellant requested a charge on the lesser included offense of recklessly causing serious bodily injury to a child, and a jury convicted appellant of the lesser included offense. Accordingly, appellant may not complain on appeal that there is insufficient evidence regarding his culpable mental state at the time of the offense. Moreover, after reviewing the record and applying the appropriate standards of review, we conclude that the evidence is legally and factually sufficient for the jury to find that appellant recklessly caused serious bodily injury to a child. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004); Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004) We overrule appellant's first and second issues.IV. Jury Argument
In his third issue, appellant contends that the trial court erred by overruling his objection to the prosecutor's argument suggesting that his interest in the case was the public's interest and thus superior to defense counsel's interest. During the punishment stage of the trial, the prosecutor made the following argument:[STATE]: May it please the Court, Counsel, members of the jury. Listen to [Defense Counsel's] argument. He is always very good. He is an eloquent speaker. I'm not such the eloquent speaker but I have passion and truth and righteousness on my side.
He said that I'm going to get up here and yell and be angry and so forth, and yeah, I am angry about this, but I'm not going to yell very much. But my job — I am hired to be a public servant to represent the public's interest. [Defense Counsel is] hired to represent his interests. I don't actually represent [K.S.] —
[DEFENSE COUNSEL]: Your Honor, I am also an officer of the court. I think he is trying to make a distinction that I'm not, and by ethical rules of the Court and the Bar, we object to that.
THE COURT: Overruled.Improper Jury Argument 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 deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. 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). In the present case, the prosecutor argued to the jury that he and defense counsel were hired to represent different interests. This argument does not fall within any of the four categories of permissible prosecutorial jury argument. Nevertheless, the State contends that the prosecutor's argument was proper because it is common knowledge that the prosecutor represents society. We disagree. The prosecutor did not merely inform the jury that he represents society. Rather, he drew a distinction between the interests the two attorneys were hired to represent. Drawing this distinction could serve no purpose other than to imply that the prosecutor is more credible than defense counsel or that his cause is more worthy. See Lewis v. State, 529 S.W.2d 533, 534 (Tex.Crim.App. 1975). In Lewis, the prosecutor argued that he had taken an oath to seek justice while defense counsel had not. Id. The court held that "the effect of this argument was to instruct the jury that only the prosecutors seek to uphold truth and justice, whereas defense counsel have a license to use any means at their command to mislead the jury." Id; see Wilson v. State, 938 S.W.2d 57, 58-59 (Tex.Crim.App. 1996), abrogated on other grounds, Motilla v. State, 78 S.W.3d 352, 356-57 (Tex.Crim.App. 2002); see also Bell v. State, 614 S.W.2d 122, 123 (Tex.Crim.App. [Panel Op.] 1981) (holding that the prosecutor's argument, which contrasted the ethical obligations of the two attorneys, was improper). Moreover, the court of criminal appeals has recognized that, generally, the public does not understand the code of ethics by which attorneys are bound. See Bray v. State, 478 S.W.2d 89, 90 (Tex.Crim.App. 1972). In Bray, the prosecutor argued that he represents the public and that he is glad he does not have to represent someone like the defendant. Id. The court held that the argument was improper, noting that many in the public believe an attorney should not represent a person charged with a crime, particularly if there is some indication the person is guilty. Id. The prosecutor's argument in the present case is similar to the arguments in Lewis and Bray in that the prosecutor was attempting to distinguish himself from the defense attorney. Further, because no evidence was presented to show the interests that each attorney was hired to represent, the argument injected new facts into the case. See Wilson, 938 S.W.2d at 60. Thus, we hold that the prosecutor's argument was improper.