East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

Wesson v. State (Unpublished Opinion): Bribery conviction affirmed. Wesson, the City of Palestine’s dual capacity tax assessor-collector/city water utility supervisor got $1,000 from a citizen in exchange for issuing him a $7,183.71 refund for “billing errors” on his water bill. Whether or not there was a billing error, the citizen shouldn’t have gotten the refund money because he owed $14,465.86 in back taxes to the assessor-collector’s office.

Jury argument: Wesson produced an old water bill on the eve of trial (it had to do with whether she had used part of the $1,000 to pay her own water bill). The prosecutor responded by asking the jury to consider why Wesson hadn’t produced the water bill sooner, and why she hadn’t produced any other documents. Wesson said the prosecutor’s argument was an end-around her Fifth Amendment privilege against self-incrimination.

It wasn’t. Granted, prosecutors can’t make a plea for the jury to consider a defendant’s failure to testify. But when documents are added to the mix, things aren’t as cut-and-dried. The court looks at the argument as a whole to see if the prosecutor “manifestly intended” such a plea, or (prosecutor’s intent aside) the jury would “necessarily and naturally” hear such a plea in the prosecutor’s words.

Under that standard, it appears that a tie goes to the prosecution – a “mixed” statement that could refer to the failure to testify or to the failure to produce documents does not “necessarily” refer to the failure to testify. That’s a bit of editorializing on my part, though. There was no mixed statement here. The Tyler court found that there was nothing in what the prosecution said that went to the failure to testify. The prosecutor’s statements were squarely directed to the documents. Hence there was no violation of the privilege against self incrimination.

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Ex parte McAndrew (Unpublished Memo): McAndrew was convicted of assaulting his ex-wife's new hubby during a visitation exchange (McAndrew and his ex have a daughter).  McAndrew complains of ineffective assistance of counsel on several grounds.  All of which are denied.

This case has a good overview of the caselaw and standards of review for ineffective assistance of counsel in the habeas setting.  In large part, that's because the Tyler court had seen this case before. Initially, the trial court denied relief without a hearing.  McAndrew successfully appealed the lack of hearing.  But in a case of "watch what you ask for ..." he got the hearing.

And after the hearing, the trial court entered detailed findings of fact adverse to McAndrew that were relied on by the Tyler court.

First, McAndrew feels that his attorney should have objected when his ex testified that he was an abusive hothead prone to violence.  But, by the time his wife got to the stand, McAndrew had already shown himself to be a hothead.  In spite of his attorney's advice about appearance and proper courtroom demeanor, McAndrew showed up for trial with a rumpled shirt and wild hair.  He rolled up his sleeves.  Every time he heard something he didn't like, he'd get red-faced and lean over the table like he was "ready to pounce."  His attorney figured it would only hack the jury off to pretend that McAndrew wasn't a hothead.  The trial court agreed.

Likewise, McAndrew felt that his attorney should have cross-examined his ex on a prior written statement that could be read to contradict her testimony about the assault .  But the trial attorney figured that the statement, while ambiguous on the details of the assault, was very clear on some other, damaging matters.  The statement was better off left alone.  The trial court agreed with that, too.

McAndrews felt that his daughter should have been called to the stand to refute her mother's testimony.  McAndrew's trial attorney recalled that, at the time of trial, McAndrews didn't want his daughter testifying.  But the attorney didn't recall the exact reasons for that decision.  In any event, under the standard of review, if there's no evidence of the attorney's reasons, it's presumed he had good ones.  The trial court offered a couple.  One: maybe McAndrews at least had the decency not to put his daughter in the middle of this.  Two: this was a "damage control" case.  They jury was going to say he committed the assault, the only question was how mad they were going to get and how long the sentence would be.   Calling a child to the stand tends to get juries mad.

Finally, there's the jury argument issue.  McAndrews said the assualt was self-defense.  The State said the situation had to be viewed from the standpoint of a reasonable person in McAndrew's shoes -- not the way McAndrews himself subjectively viewed things.  McAndrews thought that was an objectionable misstatement of the law.  It wasn't..  It's a correct statement of the law.

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Fuller v. State (Unpublished Memo): When an accused molester has been cut off from his own grandchildren, asking the jury to “draw inferences from that” gets the prosecutor’s point across without creating reversible error.

Sexual assault of a minor. Sixteen year old is assaulted by her father’s roommate in a vehicle. Roommate appeals on grounds that it’s “he said, she said” and the circumstances of when she first told family and friends of the assault make you wonder if the assault even happened. State offered the testimony of an expert who said that delayed reporting is common, especially when the teenager is still under the same roof as the offender. Roommate’s argument fails on both legal and factual sufficiency. Nothing unusual in that result.

What’s more interesting is the jury argument issue.

Apparently, father and roommate were older. Father was recovering from open heart surgery. That’s why Roommate was driving the child around. That’s also one of the reasons why the victim didn’t want to tell her father -- she didn't want to "stress him out" as he recovered from surgery.

Roomate had shown a picture to the victim of what appeared to be an eighteen year-old girl, describing the girl in the picture as his “granddaughter."  Truth be told, the girl in the picture was not his granddaughter.  In fact, Roommate’s oldest grandchild was eleven.  And Roommate had been cut off from his daughter and grandchildren for six years or more.

In closing argument, the State urged the jury to “draw inferences from that.” Roommate objected. Trial court sustained the objection, but refused to instruct the jury to disregard or to grant a mistrial.

The standard for reversible jury argument is whether it is “extreme, manifestly improper, injects new and harmful facts into [the] case or violates a mandatory statutory provision and is thus so inflammatory that its prejudicial effect cannot reasonably be cured by [a] judicial instruction to disregard [the] argument.”

The Tyler court stated that “[a]nalyzing the statements at issue in the context of the entire jury argument, we conclude that the prosecutor’s statement was acceptable as a summary of the evidence and asking the jury to make a reasonable deduction from that evidence.” The Court further stated: “the prosecutor’s argument did not inject new or harmful facts into the case.” [emphasis added]

Silence is golden: I guess this boils down to a presumption that the inferences drawn by the jury will be reasonable and permissible. I think it would be entirely permissible for the jury to conclude that: a. Roommate is a liar, b. he had a reason to lie to the victim, and c. that reason was to “facilitate” the crime -- why would you lie about something as creepy as having a granddaughter you really don’t unless you were up to no good. On the other hand, what if the jury presumed that d. Roommate is an all-around bad actor, and e. Roommate had probably molested his own daughter, and perhaps even his own grandchildren? Maybe I’m too cynical, but that’s certainly a possibility in my mind. Also in my mind: This case would have turned out differently if the prosecutor had put words to that speculation. But he didn’t. His silence made those points for him, without risking reversible argument.

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