
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-05-00839-CR


Ronnie James Stephens, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. D-1-DC-05-204292, HONORABLE FRED A. MOORE, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N
 
		A jury convicted appellant Ronnie James Stephens of the offense of robbery.  See
Tex. Penal Code Ann. § 29.02 (West 2003).  During punishment, Stephens pleaded true to a prior
felony conviction for burglary and the district court assessed punishment at ten years' confinement. 
See id. § 12.42(b) (West Supp. 2006).  In his sole issue on appeal, Stephens contends that the district
court erred in overruling his objection to the State's comments during closing argument about
Stephens's courtroom demeanor.  We will affirm.

BACKGROUND
		The underlying facts of this case are uncontested on appeal.  The jury heard evidence
that on August 22, 2005, John Bonine parked his vehicle in a lot adjacent to Austin Police
Department (APD)  headquarters.  Bonine explained that he regularly conducted business at APD 
headquarters on behalf of automotive body shops.  Bonine testified that in the parking lot he was
approached by Stephens, a tall, very muscular, shirtless, and "wild-looking" man who demanded that
Bonine give him a dollar.  Bonine testified that, after he refused Stephens's demand, Stephens stated,
"If you don't give me a dollar by the time we get to the street I'm going to whoop your ass."
Stephens then stood in front of Bonine, blocking his path, and again demanded money.  Bonine
described Stephens as having a "menacing countenance" throughout the incident.  Bonine removed
several dollar bills from his pocket and handed them over to Stephens.  Bonine testified that, after
he handed over the money, he tried to use his cell phone to call 911, but Stephens told him, "You
don't want to do that."  Bonine then put his phone away and walked over to APD headquarters to
report the incident in person.
		Sergeant Edmund Hughes and Officer Kevin Kelly responded to the report.  Both
officers described Stephens's appearance, and their testimony largely matched Bonine's testimony. 
Additionally, Hughes testified that when he arrived Stephens was "ranting and raving" and had a
beer in his hand.  Kelly testified that he arrested Stephens for public intoxication and that, when
taken into custody, Stephens had "several dollar bills on his person."
		On September 9, 2005, Stephens was charged with robbing Bonine.  Stephens
pleaded not guilty and was tried before a jury.  The trial was brief.  The State presented the testimony
of Bonine, Sergeant Hughes, and Officer Kelly.  Stephens did not testify and presented no witnesses. 
During the State's closing argument at the guilt/innocence phase of the trial, the following occurred:

THE STATE:  [Bonine] came in here and told you just like anybody would if they
were a victim of a crime.  Not only that, the police corroborated what he said.

So I'm going to ask you to think about that when you look at this case.  And I know
a lot of you are thinking you've seen the defendant, his actions[ (1)] in the courtroom--

DEFENSE COUNSEL:  Objection.  It's referring to the defendant's demeanor in the
courtroom.  That comments on the failure to testify.

		The district court appeared to overrule Stephens's objection as it related to courtroom
demeanor but sustain his objection as it related to the failure to testify: 

THE COURT:  It's overruled as to what you have seen here in the courtroom, all the
proceedings, the full proceedings.  However, as is given to you in the Charge of the
Court, you are not to consider the fact that the defendant did not testify as any
circumstance against him.  With that, please continue.

		Stephens never asked the district court to clarify its ruling, nor did Stephens request
a mistrial.  When the State resumed its argument, the prosecutor continued to comment about
Stephens's demeanor:

THE STATE:  You're thinking some of the actions were out of the ordinary.  And
maybe it looks like he doesn't care about what happens.  Well, just because he may
not care, please don't make it that you don't care.  Because it's important to Mr.
Bonine. . . .

So if the defendant doesn't care, that doesn't matter.  We want you to care. . . .

Stephens never renewed his objection to the State's comments.
		The jury found Stephens guilty, and the district court assessed punishment at
ten years' confinement.  This appeal followed. 

DISCUSSION
		Stephens asserts that the district court's decision to overrule Stephens's objection to
the State's closing argument constitutes reversible error.  In response, the State contends that (1)
Stephens did not preserve error, (2) the State's comments constituted a permissible plea for law
enforcement, and (3) any error was harmless.
		A proper jury argument must fall within one of four general areas: (1) summation of
the evidence, (2) reasonable deductions from the evidence, (3) answer to the argument of opposing
counsel, or (4) a plea for law enforcement.  Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App.
1999); Cole v. State, 194 S.W.3d 538, 544 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd).
Commenting upon the defendant's non-testimonial courtroom behavior or demeanor to establish
guilt is improper argument.  Wead v. State, 129 S.W.3d 126, 128 (Tex. Crim. App. 2004); Good v.
State, 723 S.W.2d 734, 737 (Tex. Crim. App. 1986).  Improper jury argument is reversible error
when it (1) violates a statute, (2) injects new and harmful facts into the case, or (3) is manifestly
improper, harmful, and prejudicial to the rights of the accused.  Wilson v. State, 938 S.W.2d 57, 59
(Tex. Crim. App. 1996); Lee v. State, 51 S.W.3d 365, 371 (Tex. App.--Austin 2001, no pet.).
		Even assuming, without deciding, that the State's comments were improper and that
Stephens preserved error, we must ultimately determine whether the alleged error warrants reversal.
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).  Erroneous rulings related to jury
argument are generally treated as non-constitutional error within rule 44.2(b) of the rules of appellate
procedure.  Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000); Mosley, 983 S.W.2d at 
259.  However, Stephens claims that, in this case, the district court committed constitutional error
under the purview of rule 44.2(a) because the improper jury argument amounted to a comment on
Stephens's failure to testify.  Such a comment would violate the Fifth Amendment, which generally
prohibits a prosecutor from making adverse comments about a defendant's decision not to testify at
trial. (2) Griffin v. California, 380 U.S. 609, 611-12 (1965); Wead, 129 S.W.3d at 128 n.2.
		We disagree with Stephens's contention that the State's comments referred to his
failure to testify.  "A prosecutor's comment amounts to a comment on a defendant's failure to testify
only if the prosecutor manifestly intends the comment to be, or the comment is of such character that
a typical jury would naturally and necessarily take it to be, a comment on the defendant's failure to
testify."  Wead, 129 S.W.3d at 130 (citing United States v. Jefferson, 258 F.3d 405, 414 (5th Cir.
2001)).  "It is not sufficient that the language might be construed as an implied or indirect allusion
to the defendant's failure to testify."  Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App.
2001).  Nothing in the record suggests that the State intended to comment on Stephens's failure to
testify, nor are the State's remarks of such a character that a typical jury would naturally and
necessarily take them to be a comment on Stephens's failure to testify.  Instead, as Stephens states
in his brief, the State's comments suggest that Stephens appeared "unconcerned or nonchalant" about
the outcome of the trial. 
		Because the State's comments did not implicate Stephens's constitutional rights, we
will analyze the alleged harm under rule 44.2(b), which requires that we disregard any error not
affecting substantial rights.  Tex. R. App. P. 44.2(b).  In other words, "the conviction should not be
reversed when, after examining the record as a whole, the reviewing court has a fair assurance that
the error did not influence the jury or had but a slight effect."  McDonald v. State, 179 S.W.3d 571,
578 (Tex. Crim. App. 2005).  When analyzing the harm caused by an improper jury argument, we
examine the following factors: (1) severity of the misconduct (the magnitude of the prejudicial 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).  Ramon v. State, 159 S.W.3d
927, 929 (Tex. Crim. App. 2004) (citing Mosley, 983 S.W.2d at 259).
 
	1.  Severity of the misconduct
		When considering this factor, although we examine the egregiousness of the
prosecutor's conduct, prejudice to the defendant is "clearly the touchstone" of this factor.  Hawkins
v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).  A defendant is prejudiced if the prosecutor's
comments ask the jury to draw an unreasonable inference of guilt from the defendant's non-testimonial demeanor.  See Good, 723 S.W.2d at 738.  In Good, the prosecutor made the following
remarks about the defendant:

You observed his demeanor in this courtroom and I submit to you it is a reasonable
deduction that he would have reacted in some way, shown some concern.  He has just
sat there cold, unnerved, uncaring, just like he was like that morning [of the
burglary]. That tells you a great deal about him. That has nothing to do with
articulation or being able to speak or education.  No, that has to do with the fact that
he is guilty and he could care less this week that he is guilty and he could care less
back on [the date of the offense].


Id. at 735 (emphasis added).  In effect, the prosecutor attempted to use Good's neutral courtroom
demeanor as evidence that Good committed the crime.  That is not the case here.  The State did not
ask the jury, either directly or indirectly, to infer guilt from Stephens's demeanor.  Instead, the State
was asking the jury to care about the outcome of the trial even if Stephens did not appear to care
about the outcome.  Taken in context, such a comment could arguably be considered a plea for law
enforcement, (3) which is a proper jury argument.  However, even if the State's comments were
improper, they were certainly not "egregious."  This factor weighs in the State's favor.
 
	2.  Measures adopted to cure the misconduct
		Generally, improper jury argument may be cured by an instruction to disregard. 
Hawkins, 135 S.W.3d at 75.  The district court did not instruct the jury to disregard the comments. 
However, after overruling the objection, the district court did remind the jury that it was not to
consider the fact that the defendant did not testify as any circumstance against him.  Although this
was not an instruction to disregard, as the State claims it was, it could arguably be viewed as an
instruction not to consider the State's comment for an impermissible purpose.  Nonetheless,
overruling Stephens's objection effectively placed a judicial "stamp of approval" on the State's
comments.  See Good, 723 S.W.2d at 738.  This factor weighs in Stephens's favor.
 
	3.  Certainty of the conviction absent the misconduct 
		The State's evidence consisted of the testimony of Bonine and the two police officers 
who responded to Bonine's complaint.  Bonine explained in detail how he was robbed and identified
Stephens as the person who robbed him.  On cross-examination, Bonine explained to the jury his
close physical proximity to Stephens when he was robbed and was able to describe Stephens's
appearance during the robbery in great detail.  The two police officers corroborated Bonine's
description of Stephens.
		There was no contrary evidence offered by the defense.  The only contested issue at
trial was the robber's identity.  In closing, Stephens pointed out differences between Bonine's
description of Stephens and the description of Stephens given by the police officers.  Stephens
claimed that these discrepancies created reasonable doubt as to the identity of the robber.  However,
after reviewing the testimony of all three witnesses for the State, we conclude that their descriptions
of Stephens at the time of the incident are largely consistent and that any discrepancies in their
testimony were minor.  We are certain that at the conclusion of the guilt/innocence phase of the trial
the State had proved the robber's identity beyond a reasonable doubt, and even if the State had made
no reference to Stephens's courtroom demeanor in its closing argument, Stephens would have been
convicted.  This factor weighs in the State's favor.
		After examining the State's comments in light of the above factors, we find that, even
assuming that the comments were improper, there was insufficient harm to warrant reversal of
Stephens's conviction.  We overrule Stephens's sole issue on appeal.

CONCLUSION
	Having overruled Stephens's issue on appeal, we affirm the judgment of the
district court.


  
					Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed:   March 1, 2007
Do Not Publish
1.   The record does not reflect the "actions" by Stephens to which the State may have been
referring.  Stephens states in his brief that the State may have been referencing his possible
"unconcerned or nonchalant" appearance during trial.
2.   Such a comment would also violate article 38.08 of the code of criminal procedure, which
provides: "Any defendant in a criminal action shall be permitted to testify in his own behalf therein,
but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor
shall the same be alluded to or commented on by counsel in the cause."  Tex. Code Crim. Proc. Ann.
art. 38.08 (West 2005).
3.   The State made the comment towards the end of its argument, when it was discussing the
impact the crime had on the victim.

