TCDLA Texas Criminal Law Short Course - Voice For The Defense ...

argument" will not cut it; you must incorporate
one of the areas that are listed
below. Yon must obtain an adverse ruling
from the judge; "This is argument,"
"Stay in the record," or "Let's move
along," all favorite avoidance techniques
used by trial judges are not adverse rulings.
Diplomatically ask the court for a ruling
on your objection. If your objection is
overruled, you have preserved the error.
If your ohjection is sustained, you must
seek an instruction to disregard. If this is
granted you must-reluctantly, ~f courseask
for a mistrial. And be prepared to renew
your objection when the prosecutor
makes a second pass at an improper area.
What follows is a Top Ten List of the
nost common forms of improper prosecuiorial
jury argument. It is a sound strategy
to incorporate what follows in a motion in
limine handed to the prosecutor just before
the final arguments begin. Not only will
it put the prosecutor on notice that you will
be all over him at the first sign of forensic
misconduct, it will have the same effect on
the trial judge as well. Moreover, if the
prosecutor is dumb enough to actually
engage in improper argument, you have a
tailor-made point of error on appeal that
the prosecutor was put on notice via your
motion in l ine as to what was proper and
still did it anyway. Adding the words "bad
faith" to an appellate point of error will
almost certainly get someone's attention in
the court of appeals.
1. COMMENTING ON THE
DEFENDANT'S FAILURE TO
TESTIFY
Even the most inexperienced prosecutor
has read Article 38.08, V.A.C.C.P. and
will manage to avoid a direct allusion to
the defendant's failure to testify. Such a
comment offends both our skate and federal
constitutions. Jones v. State, 693 S.W.2d
406 (Tex.Crim.App. 1985). But some
prosecutors still like to point out to the
jury, especially during the punishment
phase, that the defendant has exhibited no
remorse For his or her actions when they
have not taken the stand. Because remorse
is a highly personal state of mind which
must be communicated for others to know
of it, this type of argument is a direct comment
on the defendant's failure to testify.
Dickinson v. State, 685 S.W.2d 322
(Tex.Crim.App. 1984); Owen v. Store,
656 S.W.2d 458 (Tex.Crim.App. 1983);
Davis v. State, 646 S.W.2d 594 (Tex.
App.-Dallas, 1983).
2. COMMENTING ON THE
DEFENDANT?3 COURTROOM
DEMEANOR
While the State may properly comment
on the defendant's testimonial demeanor
during final argument, the prosecution may
not comment on the defendant's neutral,
orderly courtroom demeanor during final
argument. Such argument is based upon
conduct that is neither in evidence and
which cannot support a reasonable inference
of guilt from that evidence. Good v.
State, 723 S.W.2d 734 (Tex.Crim.App.
1986).
3. STRIKING AT THE DEFEN-
DANT OVER COUNSEL'S
SHOULDERS
The State may not strike at a defendant
over the shoulders ofhis counsel or accuse
defense counsel of bad faith and insincerity.
This includes accusing defense counsel
of putting witnesses on the stand whom he
knows are lying, Bell v. State, 614 S.W.2d
122 (Tex.Crim.App. 1981). accusine.
defense counsel of"coming up with a
story," Sunday v. State, 745 S.W.2d 436
(Tex.App.-Beaumont, 1988), or accusing
defense counsel of "acting in bad faith
like usual." Fuentes v. State, 664 S.W.2d
333 (Tex.Crim.App. 1984).
4. COMMENTING ON THE
DEFENDANT'S FAILURE TO
CALL WITNESSES
A prosecutor may comment on the failure
of the accused to call to attest to his
good reputation any witnesses at all or
some particular known witness who is
competent to give material testimony on
the matter provided that there is some indication
that these witnesses, in fact, exist.
The prosecutor may not create these
figures himself and then relate to the jury
his own version of what they might testify
to. McKenzie v. State, 617 S.W.2d 211
(Tex.Crim.App 1981); Person v. State,
706 S.W.2d 153 (Tex.App.-Houston [lst
Dist.1, 1986).
5. ARGUMENT CONTRARY TO
THE COURT'S CHARGE
Prosewtorial argument which contains
a statement of the law contrary to the trial
court's charge is manifestly improper. The
prosecutor may not, for example, tell the
jury that before the accused may resort to
his right of self-defense, he "had to be
willing to take a beating," is reversible error.
Burke v. State, 652 S.W.2d 788
(Tex.Crim.App. 1983).
6. ALLUDING TO COLLATERAL
CRIMES IN ASSESSING
PUNISHMENT
While references to extraneous offenses
to prove a continuing plan or scheme may
be admissible during the guiltlinnocence
stage of the trial, such references to collateral
crimes are improper during the
punishment stage of the trial. If the surrounding
facts and circumstances of a
charged offense include a collateral offense,
the State may not request additional
punishment for the collateral crimes.
Lomas v. State, 707 S.W.2d 566
(Tex.Crim.App. 1986); Bennett v. State,
677S.W.2d 121 (Tex.App.-Houston [Ist
Dist.], 1984).
ASSISTANT
FEDERAL
PUBLIC DEFENDERS
McALLEN & LAREDO, TX
two positions
McAllen: three to four years
trial experience, to $40,000.
Laredo: two to three years trial
experience, to $35,000. Fluent
Spanish required. Some travel.
Send resume or call
(713) 220-2194
Roland E. Dahlin I1
Federal Public Defender
Southern District of Texas
P.O. Box 61508
Houston, Texas 77208-1508
September 1988 1 VOICE for fhe Defense 11