Jury Trials Archive | Howard Lotspeich Alexander & Williams

Jury Instruction on Failure of Family to Testify During Sentencing

After the defendant was convicted in the case of Lucio v. State, and the case proceeded to the punishment phase, the jury noticed something conspicuous about the defense case…nobody from the defendant’s family came to the witness stand to testify on his behalf. No poor momma with tears in her eyes. No sister or brother to testify about what a good person the defendant is at heart. Nothing. Just crickets. Curious about why nobody from the defendant’s family testified, the jury sent a question in to the trial judge while they were deliberating on the sentence:

Does the law prevent a family member from speaking during the sentencing phase, for the defendant?

Over defense counsel objection, the trial court provided the following response to the jury:

The law does not prohibit a family member from testifying on behalf of a defendant so long as the witness has relevant evidence related to an issue in the case. You have heard all of the witnesses who have been called to testify. Please continue your deliberations.

Of course, there were two inferences that the jury could reasonably draw from the instruction: (1) none of the available family members could provide relevant information, or (2) the defendant did not want to call any family members because they would not provide favorable testimony.

On appeal, the defense argued that the trial court’s instruction was an improper comment on the evidence. The 2nd District Court of Appeals (Fort Worth) disagreed and the Texas Court of Criminal Appeals granted discretionary review to settle the issue. Here’s what the CCA held:

We conclude that the general rule that prohibits the court from singling out a particular piece of evidence in its instructions to the jury given prior the jury deliberations does not necessarily apply when the court merely responds to the jury’s question concerning a subject identified by the jury.

The court noted that the court’s instruction was a correct statement of the law that did not improperly convey a “personal estimation of the strength or credibility” of evidence. The CCA affirmed the court of appeals.

Judge Meyers dissented, opining that:

the trial court’s instructions indicate to the jury that it is permissible to focus on the fact that the defendant’s family did not testify at punishment. In doing so, the judge expressed an opinion as to the weight of the evidence…

The Extent of a Defendant's Right Not to Testify?

If a criminal defendant takes the stand during trial on the merits and denies culpability, but then, after being convicted, chooses not to testify during the punishment phase of the trial, may the prosecutor comment during closing that the defendant has “not taken responsibility for the crime?”

The 1st District Court of Appeals (Houston) says NO. But what about the Texas Court of Criminal Appeals?

In Randolph v. State, No. PD-0404-10 (Tex. Crim. App. 2011), appellant testified during guilt/innocence he was never at the scene of the crime and offered the jury an alibi. After the jury convicted him, he did not take the stand during the punishment phase of the trial. The prosecutor argued during close (in the punishment phase):

You heard from him, you heard his version and you dismissed it by finding him guilty. He has not taken responsibility for this crime.

On appeal, appellant relied upon Swallow v. State, 829 S.W.2d 223 (Tex. Crim. App. 1992) to argue that the prosecutor improperly commented on his failure to testify during the punishment phase of trial. The 1st COA agreed and held the prosecution violated the precedent set forth in Swallow. The CCA didn’t buy it, however, holding:

[A] punishment-stage remark on the defendant’s failure to accept responsibility may be fair game if the defendant, in his guilt-stage testimony, denied responsibility for his actions or for the crime.

The 1st COA held this closing argument remark was the same as the remark given by the state in Swallow, but the CCA distinguishes:

But in this case the prosecutor said nothing about remorse or lack of remorse. She spoke only of “responsibility of the crime” – responsibility that appellant explicitly denied during his testimony. This Court, in Swallow, inadvertently combined the apples of “remorse” (which is generally expressed only after accepting responsibility) with the oranges of “responsibility.”

The CCA further explained:

The prosecutor may comment on any testimony given by the defendant in the guilt stage, and, if the defendant expressly or impliedly denies criminal responsibility during that testimony, the prosecutor may comment on that denial.

Dissenting Judge Meyers asserts:

By referring to the fact that Appellant did not take responsibility for the crime, the state pointed out that the defendant did not testify during punishment phase of his trial. The majority complicates the matter by analyzing the definitions of the words used by the prosecutor, rather than considering their obvious meaning – thus creating a horrible Hobson’s choice for the defendant, an indiscernible dilemma for the trial judge, and an appellate record that will be difficult to decipher.

The general rule is that the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. However, evidence of extraneous acts of misconduct may be admissible if (1) the uncharged act is relevant to a material issue in the case, and (2) the probative value of that evidence is not significantly outweighed by its prejudicial effect. Because the propensity to commit crimes is not a material fact in a criminal case, Texas Rule of Evidence 404(b) explicitly prohibits the admission of uncharged acts to prove conduct in conformity with a bad character.

Last week the 2nd District (Fort Worth Court of Appeals) considered the issue of modus operandi (i.e. criminal signature) in the case of Price v. State. In Price, the appellant had been convicted at trial of aggravated robbery after he was identified by a convenience store clerk as the African American man who entered the store armed with a crowbar and wearing a towel on his head demanding money from the cash register. The State offered evidence of other uncharged convenience store robberies as evidence of “identity” or modus operandi under Texas Rule of Evidence 404(b). Over appellant’s objection, the trial court allowed the evidence of the extraneous offenses to come in.

If you were to read only the majority opinion, you might agree that because the defense attempted to impeach the convenience store clerk on the issue of identity, the defendant opened the door to (i.e. made relevant) the evidence that there were three similar robberies done by a man in the local area. However, from Justice Dauphinot’s dissent, we learn that there was more to it than that.

Justice Dauphinot demands the majority to answer how it was that the defense opened the door to the issue of identity of when all the defense counsel did during his cross of the State’s witness was to repeat the questions that the prosecutor already asked. You see, the prosecutor in this case, in an effort to take the sting out the some of the weak points, raised the issue of identity during direct examination. How then, asks the dissenting Justice, can the prosecutor then rely on the issue of “identity” to survive a 404(b) objection to the admissibility of the extraneous offenses?

Justice Dauphinot also points out that mere “identity” is typically not enough to survive a 404(b) objection in cases like this. What the court should really be concerned with is modus operandi.

One of the main rationales for admitting extraneous-offense evidence is to prove the identity of the offender. Here, the theory of relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a ―signature. Usually, it is the accretion of small, sometimes individually insignificant, details that marks each crime as the handiwork or modus operandi of a single individual.

In this case, the majority noted that the offense at trial and the extraneous offenses were all committed by a black man. After all, how many black men can there possibly be in North Texas? The court further noted, without discussion, that the men in the extraneous offenses also wore a towel on his head. Lastly, the majority mentions that the man or men in the extraneous offenses carried a weapon. Not always a crowbar. In one offense the perpetrator carried a knife and in another he carried a steel pipe. To Justice Dauphinot, these facts are not markedly similar enough to indicate a modus operandi. In her opinion, the State did not meet its burden to show that that “the extraneous act has relevance apart from its tendency to prove character conformity.”

As I was perusing my typical news sources this morning, I came across this article about a Tarrant County juror who was excused from a civil case and then charged with contempt for trying to "friend" the defendant in the case on Facebook.  That's the world in which we live, I suppose.  Everything is real-time, social media is pervasive, and folks are indiscriminate about what they do online.  It has already been and will continue to be interesting to see how the trial judges tackle this issue in their instructions to venire panels.  It is probably prudent to have a standard Facebook jury instruction.

Blackshear v. State (link not working for now) 14th District Court of Appeals (Houston) 2011.

In Blackshear, the jury convicted appellant of possession of a controlled substance, but could not agree on an appropriate sentence. The judge declared a mistrial for the sentencing portion of the case. The State, which did not put on any evidence during the initial sentencing phase, decided to recall some of the trial witnesses during the new sentencing hearing to give the new jurors a better taste of the evidence. Accordingly, the appellant requested a continuance so that he could obtain a transcript of the prior trial in order to prepare a proper defense during the new sentencing hearing. The trial court, however, was more interested in a speedy disposition and denied the request for a continuance, empaneled a new jury the very same day, and conducted the sentencing hearing the following day. On appeal, the 14th COA held that it was error for the trial court to deny the continuance. The appellant had a presumptive right to the transcript that the State did not rebut. Here’s how the court explained it:

The State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal when those tools are available for a price to other prisoners. Among these basic tools is a transcript of prior proceedings when needed for an effective defense or appeal. In determining whether a defendant needs a transcript, the Britt court took two factors into account: (1) the value of the transcript to an effective defense, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.

 In considering the first factor, the Britt court noted that “our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.” Ordinarily, the court concluded, a transcript of a prior mistrial is valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses. The Court of Criminal Appeals has expressly presumed a defendant’s need for a transcript and has imposed upon the State the burden to rebut the presumption.

An easy decision for the 14th COA in Blackshear. “Blackshear’s counsel should have been able to use the transcript from the first trial in his cross-examination in the second.” The trial court denied the request. No transcript = remand for new sentencing hearing.