By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Jury argument not unambiguously a comment on
post-arrest silence (00-1-08)
On December 22, 1999, the San Antonio
Court of Appeals upheld a jury argument that may have referred to pre-arrest
silence and to post-arrest silence because it did not unambiguously refer to
post-arrest silence.
00-1-08. In the Matter of F.P.G., UNPUBLISHED, No. 04-98-00821-CV, 1999 WL
1246927, 1999 Tex.App.Lexis ___ (Tex.App.—San Antonio 12/22/99)[Texas Juvenile
Law 167th Edition 1996)].
Facts: A jury found that F.P.G., a juvenile, engaged in delinquent conduct by
committing the offenses of attempted aggravated sexual assault and aggravated
kidnapping. In four points of error, F.P.G. challenges the judgment of
adjudication, contending: (1) the trial court erred in overruling his request
for a jury instruction on a lesser included offense; (2) the State impermissibly
commented on his post-arrest silence during closing arguments; and (3) the
evidence is legally and factually insufficient to support the jury's finding
that F.P.G. engaged in delinquent conduct.
The complainant and her friend met Jason and Daniel while driving through the
parking lot of a pool hall. F.P.G. was in the back seat of Jason's car. The
girls agreed to accompany Jason and Daniel to a "get-together" at
F.P.G.'s house, and they exchanged phone numbers. The girls returned home and
called Jason to pick them up. When the two girls arrived with Jason and Daniel,
F.P.G. and four other males (Oscar, Manuel, Timothy, and Jonathan) were present
at the house. Shortly after arriving, the complainant decided to leave after one
of the males went through her purse. Jason blocked her exit. At Jason's
direction to "go get it," his brother, Jonathan, went into the master
bedroom and returned with a shotgun. Jonathan pointed the gun at the
complainant, and the complainant and her friend were pushed down the hallway
toward the bedrooms. The girls were taken to separate bedrooms. The complainant
was forced to lay on the bed, and her pants were pulled down. Before she was
sexually assaulted, she stated that she had AIDS, and the males that were
present in the bedroom backed away. One of the males came into the bedroom and
announced that the complainant's friend had "gotten away." The
complainant was allowed to leave the house. Jason and Jonathan also left the
house. The police arrived shortly thereafter and approached the house. They
banged on the door, yelled their identity, and ordered the occupants to open the
door. After a brief delay, F.P.G. opened the door with the security latch in
place. F.P.G. had stripped to his underwear in an apparent effort to convince
the officers that he had been sleeping. He asked the officers what was going on.
The officers forcibly entered the residence and arrested Oscar, Manuel, Timothy,
Daniel and F.P.G. The girls identified each of the five as having some
involvement in the incident.
Held: Affirmed.
Opinion Text:
JURY INSTRUCTION
In his first point of error, F.P.G. complains that the trial court erred in
denying his request for a jury instruction on the lesser included offense of
simple assault. F.P.G. asserts he was entitled to this instruction based on the
testimony of Timothy, who stated that he saw F.P.G. pushing the complainant down
the hallway. F.P.G. contends that the jury could have believed that he was not a
party to the attempted aggravated sexual assault or aggravated kidnapping, but
the jury could have believed Timothy's testimony that F.P.G. pushed the
complainant, making him guilty of simple assault. The State responds that
F.P.G.'s argument takes Timothy's testimony out-of-context, and Timothy's
testimony could only support a jury finding on the greater offenses.
A two prong test is applied in determining whether a defendant is entitled to an
instruction on a lesser included offense. See Bignall v. State, 887 S.W.2d 21,
23 (Tex.Crim.App.1994); Rousseau v. State, 855 S.W.2d 666, 672
(Tex.Crim.App.1993). Under the first prong, "the lesser included offense
must be included within the proof necessary to establish the offense."
Bignall, 887 S.W.2d at 23. Under the second prong, "some evidence must
exist in the record that would permit a jury rationally to find that if the
defendant is guilty, he is guilty only of the lesser offense." Id.
Assuming, without deciding, that the first prong of the test is met, Timothy's
testimony would not permit a jury rationally to find that F.P.G. was guilty only
of simple assault. Timothy testified that Jonathan was pointing the gun at the
complainant, Jason and Oscar were pulling her, and F.P.G. was pushing her toward
the bedroom. If the jury believed Timothy's testimony, F.P.G. was acting as a
party to the greater offenses. A jury could not rationally find from Timothy's
testimony that F.P.G. was only guilty of simple assault. F.P.G.'s first point of
error is overruled.
POST-ARREST SILENCE
In his second point of error, F.P.G. contends that the State impermissibly
commented on his post-arrest silence during closing arguments. The State
counters that the prosecutor's statements were directed at F.P.G.'s pre-arrest
silence, and even if the comments were directed at F.P.G.'s post-arrest silence,
the error was harmless. Commenting on a defendant's post-arrest silence violates
his constitutional right against compelled self-incrimination. Dinkins v. State,
894 S.W.2d 330, 356 (Tex.Crim.App.1995). Prearrest silence is a constitutionally
permissible area of inquiry and may be used to impeach a defendant in final
argument as a proper summation of the evidence. Waldo v. State, 746 S.W.2d 750,
755 (Tex.Crim.App.1988); Abbring v. State, 882 S.W.2d 914, 915 (Tex.App.--Fort
Worth 1994, no pet.). When comments are ambiguous enough to be equally referable
to both periods of time, error can only be established if: (1) the prosecutor's
manifest intent was to comment on the defendant's post- arrest silence; or (2)
the character of the comments were such that the jury would have "naturally
and necessarily" construed them as applicable to the post-arrest period.
Young v. State, 803 S.W.2d 335, 339 (Tex.App.--Waco 1990), rev'd on other
grounds, 830 S.W.2d 122 (Tex.Crim.App.1992).
The following portion of the closing argument contains the comments about which
F.P.G. complains:
MS. DAVIS: ... You think he is not involved? He is very involved. He admits to
you he fell in line with [the complainant's friend] being pushed down the hall,
fell in line. And he tells you he doesn't know what to do. If he was innocent,
if you were innocent don't you know after this happened in my house and the cops
are coming running out in the front yard--
MS. YOUNG: Objection, this is a violation of his right not to testify where she
is going. He has testified and he totally said--she is making assumptions based
on what he might have thought at the time that he didn't give a statement there.
That is a violation of his privilege not to incriminate himself and I ask the
jury be instructed to disregard that comment.
THE COURT: The objection is sustained. Disregard the last statement.
MS. YOUNG: And I ask for a mistrial.
THE COURT: Denied.
MS. DAVIS: You would think that if he was as scared as he told you he was he
would have said--
MS. YOUNG: Objection, doing the same thing through if [sic] backdoor. If she
says anything about him not making a statement.
MS. DAVIS: He said he was scared. Does that make sense, folks, from what he did?
THE COURT: Objection is sustained.
MS. YOUNG: Again I ask the jury be asked to disregard that comment where she
said he would have made a statement.
THE COURT: Disregard the last statement that he would have made a statement.
MS. YOUNG: At this time I move for mistrial.
THE COURT: Denied.
In this case, the prosecutor's comments are ambiguous enough to be referable to
pre-arrest and post-arrest periods. It appears that the prosecutor was alluding
to F.P.G.'s initial response to the police officers presence at his door, when
he opened the door with the security latch in place, attempting to give the
appearance that he had been asleep by his state of undress, and acting as if he
did not know what was going on. Given the ambiguity of the comments, the
prosecutor's "manifest intent" does not appear to be an attempt to
comment on F.P.G.'s post-arrest silence. Although the jury would likely have
received the remarks as comments on F.P.G.'s silence, it does not appear that
the jury would necessarily have construed them as applicable to the post-arrest
period.
Even if we were to assume that some of the comments were directed to the post-
arrest period, the trial court's instruction to disregard was adequate to cure
any error. See Garza v. State, 878 S.W.2d 213, 221 (Tex.App.--Corpus Christi
1994, pet. ref'd). F.P.G.'s second point of error is overruled.
SUFFICIENCY OF THE EVIDENCE
In his third and fourth points of error, F.P.G. challenges the legal and factual
sufficiency of the evidence. The State contends that F.P.G.'s motion for new
trial, which asserted: "The verdict was contrary to the law and
evidence," failed to preserve his factual sufficiency claim for review. The
State cites State v. Davenport, 866 S.W.2d 767 (Tex.App.--San Antonio 1993, no
pet.), as support for this contention. The decision in Davenport preceded the
Texas Court of Criminal Appeals' decision in Clewis v. State, 922 S.W.2d 126
(Tex.Crim.App.1996), in which the Court recognized that courts of appeals are
vested with the authority to review fact questions in criminal cases. Since
Davenport preceded Clewis, we do not read Davenport as excluding factual
sufficiency review when a motion for new trial alleges that the verdict is
contrary to the evidence.
In reviewing the legal sufficiency of the evidence to support the jury's
verdict, we view the evidence in the light most favorable to the prosecution to
determine whether a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307 (1979). In our factual sufficiency review, we must consider all of the
evidence to determine whether the judgment is "so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust."
Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).
Timothy testified that F.P.G. assisted the others in pushing the complainant
down the hall. The complainant's friend testified that F.P.G. directed that the
girls be placed in separate bedrooms. Although F.P.G. denied he pushed the
complainant and offered an explanation for his actions, the weight to be given
contradictory testimonial evidence is within the sole province of the jury
because it turns on an evaluation of credibility and demeanor. Cain v. State,
958 S.W.2d 404, 408-09 (Tex.Crim.App.1997). The evidence is legally and
factually sufficient to support the jury's verdict.