             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                        NO. PD-1753-06

                            ANN CAROLINE YORK, Appellant

                                                 v.

                                   THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE FOURTEENTH COURT OF APPEALS
                          HARRIS COUNTY

            J OHNSON, J., delivered the opinion of the Court, joined by M EYERS, P RICE,
W OMACK, H OLCOMB, and C OCHRAN, JJ. K ELLER, P.J., filed a dissenting opinion in
which K EASLER and H ERVEY, JJ. joined.

                                          OPINION

       After a trial by jury, appellant was convicted of driving while intoxicated (DWI). The trial

court imposed a sentence of 180 days in jail and a $500 fine, suspended the jail sentence, and placed

appellant on community supervision for one year. The court of appeals affirmed the conviction and

sentence. York v. State, No. 14-05-00448-CR (Tex. App.–Houston [14th] 2007). We granted

appellant’s petition for discretionary review. We reverse the judgment of the court of appeals.

       On direct appeal, appellant’s sole point of error claimed, “The trial court erred in denying

[her] multiple requests for a mistrial after the prosecutor repeatedly ignored the court’s rulings and
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admonitions during closing arguments and continued making improper arguments.” The court of

appeals discussed the jury arguments at issue. It noted that there were “only” seven instances during

the state’s closing argument at the guilt phase, they occurred at the beginning of the state’s argument,

and appellant’s objections for improper jury argument were each sustained and followed by an

instruction to disregard. York, 2006 Tex. App. LEXIS 9200 at * 10. The court of appeals ultimately

agreed that “the prosecutor’s repeated refusal to heed the trial court’s rulings was highly improper,”

but concluded that the conduct “does not rise to the level of reversal.” Id. at * 9-10. It specifically

said that “although the prosecutor engaged in improper arguments, . . . the repetitive nature of the

argument was not so prejudicial as to require a mistrial.” Id. at * 10-11.

       We granted appellant’s two grounds for review which assert that the court of appeals erred:

       (1) in failing to consider or address all of the factors argued by Appellant as reasons
       why the instruction to disregard did not cure the flagrantly improper jury argument;

       (2) in finding that the trial court did not err in failing to grant a mistrial when the
       distinction of prior Court of Criminal Appeals decisions claimed by the Court of
       Appeals are directly contrary to other Court of Criminal Appeals decisions and
       decisions of the same and other Courts of Appeals.

       The court of appeals quotes extensively from the record and delineates the particulars of the

prosecutor’s jury arguments that are at issue, and appellant’s objections to them and the trial court’s

rulings. Id. at * 2-6. The record reflects that, included within the challenged argument that the court

of appeals acknowledged was “highly improper,” the state made multiple attacks on appellant’s

attorney, including assertions that counsel had misled the jury as to the meaning of “normal use”of

appellant’s physical and mental faculties.

               MR. PFEIFFER: Defense Counsel is asking you to follow the law, I’m asking
       you to do the same. This is the jury charge. This is what–this is from the judge. It
       tells you what the law is. This is what you’re to be guided by when you go back to
                                                                                    3

the jury deliberations room. This is not your normal jury charge. This is what I have
right down here defines what normal –

MR. TRICHTER: Objection as to what’s normal or abnormal.

THE COURT: Sustained.

MR. TRICHTER: Move to instruct the jury to disregard.

THE COURT: Jury to disregard.

MR. TRICHTER: Move for a mistrial.

THE COURT: Be overruled.

MR. PFEIFFER: This isn’t normally defined right here. I fought tooth and nail to get
this in here.

MR. TRICHTER: Objection as to what tooth and nail [sic], move to strike.

THE COURT: The jury will disregard. It will be overruled.

MR. PFEIFFER: Because during the entire trial, the voir dire all the way up through
closing arguments, you’ve been mislead [sic] as to what normal use is.

MR. TRICHTER: Objection, Your Honor, now he’s striking over at me –

THE COURT: Sustain the objection.

MR. TRICHTER: Move for a mistrial.

THE COURT: Be overruled.

MR. TRICHTER: Ask the Court to instruct the jury to disregard.

MR. PFEIFFER: I want to talk about what normal use is.
        During this trial, you heard Defense counsel suggest that, and even through
cross-examination of these officers, “Do you know what this defendant’s normal use
is?” Throughout this entire trial, it’s been about, according to Defense counsel, what
this particular Defendant’s normal use is. That is not the law. Think about that for
a second. Think about that burden if that was the law on me. I had to prove,
according to Defense counsel, what this particular Defendant’s normal use is. That’s
impossible. . . . That’s why it’s not our law.
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       We have it right down here. Normal use means a manner in which the
normal, non-intoxicated person would be able to use his faculties, not necessarily Ms.
York. I don’t have to prove Ms. York’s normal use. That is impossible. How do I
know that? How do we know that? Cases are appealed and taken, and they come
back with the law and gives [sic] us this interpretation right here.

MR. TRICHTER: Objection, there’s been no testimony to that.

THE COURT: Sustained.

MR. TRICHTER: Move to have the jury disregard the Prosecutor’s comments.

THE COURT: Jurors will disregard. Be denied.

MR. TRICHTER: Ask for a mistrial.

THE COURT: Be denied.

MR. PFEIFFER: There’s [sic] laws that guides [sic] us to take one – interpret normal
use. In that particular case, the attorney who took it up on appeal is none other than,
Mr. Trichter –

MR. TRICHTER: Your Honor, now I ask again for a mistrial –

THE COURT: Sustain the objection.

MR. TRICHTER: Move to strike the jury –

THE COURT: The jury will disregard.

MR. PFEIFFER: If there is anyone –

THE COURT: Just a minute, Wait till I get through ruling.

MR. PFEIFFER: Yes, Your Honor.

MR. TRICHTER: Your Honor, I ask for instructions –

THE COURT: The jury will disregard the last statement.

MR. TRICHTER: I ask for a mistrial.

THE COURT: That will be overruled.
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MR. PFEIFFER: And if there’s anyone –

THE COURT: And Mr. –

MR. PFEIFFER: Pardon.

THE COURT: Argue the facts in this case not what happened not in front of the jury.

MR. PFEIFFER: Yes, sir.
         And if there is anyone in Harris County, Texas that knows what normal use
is, it’s Gary Trichter because he took it up on appeal.

MR. TRICHTER: Your Honor, I move –

THE COURT: That may be unsworn testimony.

MR. PFEIFFER: Your Honor, I would just ask for a little leeway.

THE COURT: That will be overruled and the jury will disregard that.

MR. TRICHTER: I ask the Court to instruct the Prosecutor to remain within the
proper bounds of argument.

THE COURT: Well, I just asked him to do that.

MR. PFEIFFER: I’ll do that, Your Honor.

THE COURT: Yes, sir.

MR, PFEIFFER: And for him to suggest otherwise as to what the law is, is shameful.

MR. TRICHTER: Your Honor, again, he’s attacking me again.

THE COURT: Sustain the objection. Jury will disregard. Motion for mistrial is
overruled.

MR. PFEIFFER: When you go back to deliberations, consider that. And I ask you
to. He represents Caroline York.1

Reporter’s Record, Vol. III, pp. 13-18.



1
    This series of objections and rulings comprises the first five pages of a ten-page closing argument.
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        The prosecutor’s “highly improper” jury argument continued in spite of multiple sustained

objections by appellant, multiple instructions to disregard by the trial court, and specific instructions

from the trial court to argue only the facts of the case. Appellant argues that such repetitive improper

jury argument was a direct attack on defense counsel’s integrity, honesty, and character, and accused

defense counsel of manufacturing the law and affirmatively misleading the jury about it. She asserts

that the prosecutor’s argument “was that trial counsel knew that the law was not as he had led the

jury to believe[,]” and that it was a blatant claim that trial counsel was dishonest.

        Appellant points to the multiple sustained objections to the prosecutor’s jury argument, which

were accompanied by the trial court’s instructions to disregard, and a direct instruction to argue the

facts, all of which were ignored by the prosecutor, who continued to argue what he wanted to argue.

She suggests that “[w]hen an officer of the court ignores the trial court with impunity, there is little

reason to believe that a jury would feel any need to follow instructions that were already being

ignored.” (Appellant’s Brief, p. 20.) She also suggests that there is no reason to believe that the jury

would have taken the trial court’s instructions seriously because they saw the prosecutor treat the

instructions as “idle chatter and inconvenient interruptions in the argument he was going to make

... regardless of anything the trial judge ruled or said.” (Appellant’s Brief, p. 21-22.)

        The state asserts that the first two of appellant’s objections, even though pursued to an

adverse ruling of denial of her request for mistrial, were too general and nonspecific to preserve

error. The state cites several cases that hold that objections to jury argument were too general to

preserve error. But those cases involved overruled objections or held that the trial court’s instruction

to disregard the offending argument vitiated any harm, while in the instant case the trial court

sustained appellant’s objections and instructed the jury to disregard. It is thus reasonable to conclude
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that the basis of the objections were readily apparent to the trial court. “The very nature of the

prosecutor’s argument coupled with defense counsel’s objection informed the court of the nature of

the error.” Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986). We reject the state’s

argument that appellant’s objections were too general to preserve error.

       The state also suggests that its argument to the jury that it had been misled about the meaning

of “normal use” was justified by appellant’s cross-examination of the state’s police-officer witnesses

and by some of his voir dire questioning. It argues that the state’s argument was “not inaccurate”

“[n]or ... unsupported by the record.” The state also argues that, since most citizens are aware that

jurisprudence is shaped by case law created when judgments are appealed, the prosecutor’s

explanation of the origin of “normal use” as having been developed through case law was simply “a

statement of a matter generally within the realm of common knowledge.”

       The state further asserts that its comments in argument, which were directed at defense

counsel’s tactics employed in developing his defensive theory of the case during trial, were

appropriate. It suggests that, if describing defense counsel’s conduct as “shameful” could be seen

as impugning defense counsel’s character, the use of “shameful” rather than employing harsher

language was not so inflammatory, prejudicial, or extreme that it was not cured by the trial court’s

immediate instruction to disregard.

       “We have consistently held that argument that strikes at a defendant over the shoulders of

defense counsel is improper.” Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007), cert.

filed, #07-9590, February 29, 2008. “It is axiomatic that the state may not strike at a defendant over

the shoulders of his counsel or accuse defense counsel of bad faith and insincerity.” Fuentes v. State,

664 S.W.2d 333, 335 (Tex. Crim. App. 1984). We have “long recognized that prosecutors’
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arguments which attack the personal morals or trustworthiness of defense counsel are manifestly

improper because they undermine the adversarial system by unfairly prejudicing the jury against the

defendant’s attorney.” Fuentes v. State, 991 S.W.2d 267, 274 (Tex. Crim. App. 1999). We have

also noted the impact of improper closing jury arguments because they are the last thing the jury

hears before deliberations and that an instruction to disregard may be insufficient to remove the

prejudice of some such arguments. Norris v. State, 902 S.W.2d 428, 443 (Tex. Crim. App. 1995).

In the instant case, the prosecutor’s challenged comments were made during his second closing

argument and were thus part of the last thing the jury heard before deliberations.

       “[A] prosecutor runs a risk of improperly striking at a defendant over the shoulder of counsel

when the argument is made in terms of defense counsel personally and when the argument explicitly

impugns defense counsel’s character.” Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.

1998). In the instant case, the prosecutor twice referred to defense counsel personally by name

during the course of the state’s closing jury argument and called defense counsel’s arguments

“shameful.” Thus in the instant case, the prosecutor did improperly strike at appellant over the

shoulder of his trial counsel.

       Permissible jury argument generally falls within four areas: 1) evidence summation; 2)

reasonable deductions from the evidence; 3) responses to opposing counsel’s arguments; and 4) pleas

for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996); Alejandro v. State,

493 S.W.2d 230, 231-32 (Tex. Crim. App. 1973). Striking at a defendant over the shoulder of

counsel is not a permissible basis for jury argument. We look to three factors to determine if

impermissible jury argument warrants a mistrial. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.

App. 1998). These factors are: “(1) severity of the misconduct (the magnitude of the prejudicial
                                                                                                     9

effect of the prosecutor’s remarks), (2) measures adopted to cure the misconduct (the efficacy of any

cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the

strength of the evidence supporting the conviction).” Id. and Martinez v. State, 17 S.W.3d 677, 692-

93 (Tex. Crim. App. 2000). Nevertheless, the state correctly points out that “[b]ecause all argument

has its own individual context from which it arises, caselaw concerning improper argument can

never be really anything more than instructive in an analysis of a particular improper argument.”

(State’s Reply Brief, p. 32.)

        As for severity of the misconduct, the prosecutor’s statements were a personal attack on

defense counsel, by name, and included an explicit assertion that the jury had “been mislead [sic]

as to what normal use is” and that appellant’s attorney’s actions were “shameful.” The state

acknowledges that “there was no evidence before the jury establishing that defense counsel

knowingly misled the jury, and admittedly, the basis of the implication that defense counsel did so

. . . was outside the record.” (State’s Reply Brief, p. 24.)

        The trial court’s attempt at curative measures was ineffective in that the prosecutor continued

to make the same arguments, even in the face of the repeatedly sustained objections and repeated

instructions to the jury to disregard. Repeated curative attempts and cautionary instructions that are

repeatedly ignored cannot be considered effective. We find the first two factors to weigh in favor

of appellant.

        The certainty of a conviction absent the improper argument is extremely speculative.

Although there was disputed testimony about whether appellant’s faculties were impaired, and the
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state acknowledged that the police testimony was problematic,2 the most hotly disputed issue was

whether appellant had been, in fact, the driver of the vehicle. Appellant and the other occupant of

the car both testified that the other occupant had been driving, thus conceding that appellant had lied

at the scene when she had claimed to have been the driver. Appellant’s credibility was a major

question for the jury to resolve, and we cannot assume with any confidence that a conviction was

certain without the prosecutor’s attacks on appellant over the shoulder of her trial counsel. The

prosecutor’s arguments that appellant’s trial attorney was shamefully misleading the jury brought

into question veracity and credibility–important issues for the jury to resolve.

       It is appropriate to object to defense jury argument if the state believes the argument is

attempting to mislead the jury regarding applicable principles of law; the trial court can then rule

on such an objection. However it is inappropriate to fail to object to such a defense jury argument

and then respond by arguing that defense counsel is attempting to mislead the jury. Such an attack

is a classic example of striking at the defendant over the shoulders of defense counsel.

       In Fuentes v. State, 664 S.W.2d 333 (Tex. Crim. App. 1984), we held that a prosecutor’s

comments that defense counsel was acting “in bad faith like usual” and that evidence which defense

counsel was seeking to elicit was “garbage,” were manifestly improper, harmful, and prejudicial, and

thus constituted reversible error. In Gomez v. State, 704 S.W.2d 770, 771-72 (Tex. Crim. App.

1985), we held that a prosecutor’s jury argument accusing defense counsel of manufacturing

evidence was not cured by an instruction to disregard and was thus reversible error.



       2
           The prosecutor’s jury argument acknowledged the problematic police testimony, saying,

       “The officer’s testimony. I’ll admit to you, it stunk. It was bad. I’ve seen much better. Their
       training and their knowledge of the law could have been a lot better.”
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        In this case, we likewise conclude that, in aggregate, the state’s jury arguments attacking

defense counsel were manifestly improper, harmful, and prejudicial and were not cured by the trial

court’s instructions to disregard. We hold that the court of appeals erred in finding that the trial court

did not abuse its discretion when it failed to grant a mistrial. See, e.g., Hawkins v. State, 135 S.W.3d

72, 76-77 (2004). We sustain appellant’s second ground for review, reverse the judgment of the

court of appeals, and remand to the trial court for a new trial.3



Delivered: July 2, 2008
Do not publish




        3
            Because we have sustained ground number two, we dismiss ground number one.
