                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00115-CR


ROBERT GARCIA JR.                                               APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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         FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 1321858D

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                       MEMORANDUM OPINION1

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     A jury convicted Appellant Robert Garcia Jr. of delivery of a controlled

substance, cocaine, of four grams or more but less than 200 grams, a first

degree felony, and the trial court assessed his punishment at eighteen years’

confinement in the Institutional Division of the Texas Department of Criminal

Justice. See Tex. Health & Safety Code Ann. § 481.112(d) (West 2010). In two


     1
      See Tex. R. App. P. 47.4.
points, Appellant argues that the trial court erred during final arguments (1) when

it overruled his objection to the prosecutor’s direct comment on his failure to

testify and (2) when it overruled his objection to the prosecutor’s striking at the

defendant over the shoulders of counsel. We affirm.

                                  The Evidence

      Robert Walsh, a narcotics detective, purchased cocaine from a person he

met while conducting an undercover “street level” sting operation.        Detective

Walsh identified Appellant as the person to whom he gave $250 in exchange for

eight grams of cocaine in a transaction that took place in an Arlington parking lot.

                  Argument About Which Appellant Complains

      Both of Appellant’s points are based on arguments made by the prosecutor

during final arguments.      We present first portions of defense counsel’s

arguments:

      [DEFENSE COUNSEL]: It is the height of arrogance to bring one
      officer with no other form of evidence that was possible to be
      brought to you and nothing more and say, this is enough, trust us,
      we’re the government.

Thereafter, defense counsel returned to the theme of the State’s relying on a

single witness:

      [DEFENSE COUNSEL]: What we do know is that Detective Walsh
      makes his living lying, being an actor, misrepresenting, faking what
      he looks like, faking his voice, persuading people of things that are
      not true. He is trained to persuade you. Trust me, I’m the
      government. How arrogant is it that we don’t have to bring you any
      other evidence?




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      So there’s literally no other evidence before you, including
      everything on this rail, for you to consider. I would suggest to you
      just the weight of all this makes it impossible to find the case beyond
      a reasonable doubt. . . .

      It is reasonable to require the government to do its job. It is
      reasonable to require the government to bring you different types of
      evidence so that you can compare the evidence in reaching your
      decision on if they’ve proved their case as to each of those elements
      beyond a reasonable doubt.

      The failure to provide you with what is routine investigation and
      evidence in this case is a failure of the government to prove their
      case to you beyond a reasonable doubt. It’s a good thing you’re
      here.

Defense counsel closed with these remarks:

      [DEFENSE COUNSEL]: It’s not enough. Protect the citizen who’s
      accused and protect all of our Constitutional rights. Thank you very
      much.

In the prosecutor’s closing arguments, he made the following arguments that

form the bases of Appellant’s complaints:

      [PROSECUTOR]: Now, how much is enough? I’ve been doing this
      a long time, and I wish just one time I would come in here to try a
      case and the Defense would say, you’ve got me.

      [DEFENSE COUNSEL]: Objection. This is a comment on failure to
      testify. This is also striking at the Defendant over the shoulder of
      counsel. This is a totally improper argument.

      THE COURT: Overruled.

      [PROSECUTOR]: What I’m pointing out, ladies and gentlemen, is
      it’s the Defense’s job to point out supposed inconsistencies.

      [DEFENSE COUNSEL]: Objection. This is a lessening of the
      burden. The Defense, as the Court has told the jury, has no job at
      all but to sit and be present.



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      [PROSECUTOR]: I’ll withdraw that comment.

      THE COURT: All right.

      [PROSECUTOR]: But, ladies and gentlemen, you heard what the
      arguments were.

      [DEFENSE COUNSEL]: Excuse me, Your Honor.                  Did you, I’m
      sorry, sustain my objection?

      THE COURT: I did.

      [DEFENSE COUNSEL]: So then I must ask for a limiting instruction,
      please.

      THE COURT: The Court will disregard the last argument of [the
      prosecutor].

      [DEFENSE COUNSEL]: The jury shall?

      THE COURT: The jury shall. I’m sorry.

      [DEFENSE COUNSEL]: Yes, sir. Then you know I have to ask for a
      mistrial.

      THE COURT: That’s denied.

   Whether the Prosecutor Commented on Defendant’s Failure to Testify

      In Appellant’s first point, he argues that the trial court erred by overruling

his objection to the prosecutors’ direct comment on his failure to testify.

      The purpose of closing arguments is to facilitate the jury’s proper analysis

of the evidence so as to arrive at a just and reasonable conclusion based solely

on the evidence. Barnes v. State, 70 S.W.3d 294, 308 (Tex. App.—Fort Worth

2002, pet. ref’d). Permissible jury arguments by the State must fall within one of

four general areas: (1) summation of the evidence; (2) reasonable deduction



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from the evidence; (3) answer to the argument of opposing counsel; or (4) pleas

for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App.

1992), cert. denied, 510 U.S. 829 (1993).

      Appellate courts review an allegedly improper argument in the context of

the entire argument. Mosley v. State, 686 S.W.2d 180, 183 (Tex. Crim. App.

1985). When the complaint is that a prosecutor commented on the defendant’s

failure to testify, we review the language used from the jury’s standpoint. Nowlin

v. State, 507 S.W.2d 534, 536 (Tex. Crim. App. 1974).           If the prosecutor’s

comments are not a direct attack on the defendant’s failure to testify, the

language used must be such that the jury would have “necessarily and naturally”

taken it as a comment on the defendant’s election not to testify. Montoya v.

State, 744 S.W.2d 15, 35 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1227

(1988).

      The prosecutor’s comment questioning how much was enough was in

response to defense counsel’s closing assertion, “It’s not enough.” It was from

that point that the prosecutor launched into other comments. We hold that the

prosecutor’s arguments were in response to opposing counsel’s arguments. See

Felder, 848 S.W.2d at 94–95.

      We also hold the prosecutor’s argument was not a direct comment on

Appellant’s failure to testify. The prosecutor referred to “the Defense” generically

and not to Appellant specifically.   His reference to “the Defense” was broad

enough to encompass defense counsel, as distinguished from Appellant or


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defendants generally.        Appellant asserts that the prosecutor’s subsequent

comment—“it’s the Defense’s job to point out supposed inconsistencies”—shows

that the prosecutor “stepped in it again.” We disagree. That comment appears

to be in response to defense counsel’s argument that it was “reasonable to

require the government to do its job.” We conclude it was not a comment on

Appellant’s failure to testify.

       Finally, we hold it was not manifestly intended or of such a character that

the jury would have necessarily and naturally taken it as a comment on

Appellant’s failure to testify. The implication that the comment referred to the

defendant’s failure to testify must be clear. See Bustamante v. State, 48 S.W.3d

761, 765 (Tex. Crim. App. 2001). That the language might be construed as an

implied or indirect allusion is insufficient.   See id.   The comment was not

manifestly intended to comment on Appellant’s failure to testify. See id. The

prosecutor was not faulting Appellant for not taking the stand for the purpose of

admitting his guilt. The prosecutor was telling the jury that no matter how strong

a case he presented, in a contested trial, “the Defense” was never going to

concede its case. The jury would not have necessarily and naturally taken the

prosecutor’s argument as a comment on Appellant’s failure to testify. See id.

We overrule Appellant’s first point.




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Whether the Prosecutor Struck at Appellant over the Shoulders of Counsel

       In Appellant’s second point, he contends the trial court erred by overruling

his objection that the prosecutor had struck at him over the shoulders of counsel.

       The “over-the-shoulders-of-counsel” rule protects the defendant from

improper character attacks on defense counsel. See Coble v. State, 871 S.W.2d

192, 205 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 829 (1994). Character

attacks on defense counsel are improper because they unfairly inflame the jury

against the accused. Wilson v. State, 7 S.W.3d 136, 147 (Tex. Crim. App. 1999).

A prosecutor risks improperly striking at a defendant over the shoulders of

counsel when the prosecutor refers to defense counsel personally and explicitly

impugns defense counsel’s character. Mosley v. State, 983 S.W.2d 249, 259

(Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999); Guy v. State, 160

S.W.3d 606, 617 (Tex. App.—Fort Worth 2005, pet. ref’d). The State may not

accuse defense counsel of bad faith and insincerity.       Fuentes v. State, 664

S.W.2d 333, 335 (Tex. Crim. App. [Panel Op.] 1984). We review a trial court’s

ruling on an objection asserting improper jury argument for an abuse of

discretion. Lemon v. State, 298 S.W.3d 705, 707 (Tex. App.—San Antonio 2009,

pet. ref’d).

       The prosecutor’s comments were directed at “the Defense” generically and

not at defense counsel personally.      His comments, therefore, attenuate any

personal impugning of defense counsel’s character.        Nor did the prosecutor

impugn the character of defense counsel generally; rather, the prosecutor was


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trying to drive home the point that in a contested trial, the defense will not

concede its case no matter how strong a case the prosecution brings. To the

extent the prosecutor’s following comment about it being “the Defense’s job to

point out supposed inconsistencies,” that argument broached accusing defense

counsel generally of acting in bad faith and with insincerity; however, as noted

above, this latter comment appears to have been in response to defense

counsel’s argument that the State failed in its job of presenting sufficient

evidence.   In any event, the trial court instructed the jury to disregard that

comment. We overrule Appellant’s second point.2

                                   Conclusion

      Having overruled both of Appellant’s points, we affirm the trial court’s

judgment.


                                                   /s/ Anne Gardner
                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 29, 2015



      2
         To the extent Appellant argues, in conjunction with his second point, that
the State injected new facts outside the record, this was not Appellant’s objection
at trial; accordingly, that particular complaint was not preserved for appeal. See
Tex. R. App. P. 33.1(a).


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