                                  NO. 07-10-00220-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                     JUNE 9, 2011


                        JONATHAN A. JACOBSON, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2007-418,173; HONORABLE JIM BOB DARNELL, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                        OPINION


      Appellant, Jonathan A. Jacobson, appeals his conviction, by jury, for aggravated

sexual assault of a child1 and the resulting punishment of forty-five years’ imprisonment.

On appeal, he contends the trial court erred by overruling his objection to the State’s

jury argument striking at him over the shoulders of counsel. We will affirm.




      1
          See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West Supp. 2010).
                             Factual and Procedural History


       Appellant does not challenge the sufficiency of the evidence to support the

conviction. In fact, he concedes that the evidence was sufficient. In light of his sole

issue on appeal, we address only those facts necessary to the disposition of the appeal.


       Appellant was a family friend of complainant, B.J.P. The relationship between

twelve-year-old B.J.P. and twenty-year-old appellant began as one resembling siblings

but transformed into a possessive, sexual relationship. After a number of outbursts by

appellant in response to any effort to keep B.J.P. away from him and after discovering

love letters between appellant and B.J.P., B.J.P.’s mother reported her suspicions to the

Lubbock County Sheriff’s Department. The department began its investigation.


       Initially, B.J.P. was reluctant to discuss her relationship with appellant. Early in

her interview with Detective Richard Mayer, she denied the existence of a sexual

relationship. Based on his investigation up to that point, however, Detective Mayer

sensed that B.J.P. was not being truthful with him and, so, he persisted in asking her

questions while reassuring her that, if she and appellant had had a sexual relationship,

she would not be in trouble. B.J.P. admitted that she and appellant did have a sexual

relationship.


       During cross-examination, Mayer testified that, at the beginning of his

investigation, he did not know whether appellant was guilty or innocent.            Mayer

explained that, even after B.J.P. admitted that she and appellant had engaged in sexual

intercourse, he continued his investigation into the matter:


                                             2
       I still knew that even with her saying yes [that sexual intercourse did
       occur] that I would need more to prove the case, which would be the
       CARE exam. So I wasn’t like, ‘Oh, I got this one in my win pile,’ you know
       . . . I still have to go through the steps of investigation to be sure that I’m
       not just falsely accusing somebody of something.

       During closing argument to the jury, defense counsel seized on the “win pile”

phrase and focused on Detective Mayer’s investigatory approach as he attempted to

paraphrase Mayer’s testimony:


       Some of the things that Detective Mayer told you that came out, that just
       jumped up. ‘We have to ask ourselves, now, what is it going to take as far
       as details, as far as testimony, to put this case in the win pile?’ You
       remember that’s what the detective said, “in the win pile.” And he thought
       about that. From the interview with Mike Privette right off the bat, the first
       interview.
       ...
       The State then asked the detective if he was uncomfortable, and he felt
       essentially as though he had been attacked, because he sat in that chair
       and faced hard questions . . . . We start with him talking about how he put
       it in the win pile. Not about an investigation. Not about following where
       the evidence leads. You heard him say, ‘We know what happened. We
       know who did it.’

Defense counsel’s jury argument continued in a rather scathing tone, characterizing the

investigation as a “witch hunt.”


       The State responded in its argument to the jury: “Somebody in this courtroom

has an end result that they will twist and turn and fill in the holes to make it work–”

Appellant objected to the State’s argument as striking at appellant over shoulders of

counsel, and the trial court overruled appellant’s objection. In that same vein, the State

continued: “The Defense in this case had their end result, and they will twist the words

of Detective Mayer. And if you don’t believe me, how many times did he stand up here

and use the word ‘win pile’?”
                                             3
      After the jury found appellant guilty of aggravated sexual assault of a child as

alleged and during the trial on punishment, appellant testified and admitted to having

had an ongoing sexual relationship with B.J.P. After considering appellant’s testimony

and the other punishment evidence, the jury assessed a forty-five year sentence.


      Appellant timely appealed and now contends that the State struck at defendant

over the shoulders of counsel. He maintains that the trial court erred by overruling his

objection to the State’s argument and that, in light of the nature of State’s argument and

the absence of any curative instruction to the jury, such error was harmful.


                                        Analysis


      Before we can reach the merits of appellant’s point of error, we must first

examine the impact of appellant’s confession to the offense during the trial on

punishment. The Texas Court of Criminal Appeals outlined the effect that a defendant’s

confession would have on subsequent points of error in DeGarmo v. State, 691 S.W.2d.

657, 660–61 (Tex.Crim.App. 1985). The general principle of DeGarmo, was that a

defendant may not complain on appeal of an error occurring at the guilt phase of the

trial when the defendant admits his guilt at the punishment phase of trial. Id. at 661;

Houston v. State, 208 S.W.3d 585, 589–90 (Tex.App.—Austin 2006, no pet.). Ten

years after DeGarmo, the Texas Court of Criminal Appeals reaffirmed the DeGarmo

doctrine and explained the basis for such a rule:


      When the defendant testifies and judicially confesses to the charged
      offense, the purpose of the trial process has been served–the truth has
      been determined and the purpose of the guilt/innocence phase of the trial
      has been satisfied. No reversible error should occur where the defendant
      has satisfied the necessity of the trial process.
                                            4
McGlothlin v. State, 896 S.W.2d 183, 187 (Tex.Crim.App. 1995).


       The Texas Court of Criminal Appeals refined and narrowed the scope of the

DeGarmo doctrine in Leday v. State, 983 S.W.2d 713, 715 (Tex.Crim.App. 1998) (en

banc). The Leday court acknowledged that “we as a people have deliberately chosen to

adopt laws which interfere with the truth-seeking function of the criminal trial.” Id. at

724.   Therefore, the court explained, the need to protect some fundamental rights

outweighs the truth-seeking function of a criminal trial. Id. at 724–25. After Leday,

when issues are raised on appeal by an appellant who admitted his guilt during the

punishment phase of his trial, a reviewing court must “determine if appellant asserts

fundamental rights or guaranties [which he cannot be estopped from asserting], or

whether the truth-finding function prevails to estop appellant from raising them.”2

Gutierrez v. State, 8 S.W.3d 739, 745 (Tex.App.—Austin 1999, no pet.). In other words,

when an alleged error during the guilt/innocence phase of trial does not implicate a

defendant’s fundamental rights, a defendant who admits guilt at the punishment phase

of trial is estopped from raising that error on appeal. See Wenger v. State, 292 S.W.3d


       2
         The Leday court also set out a non-exhaustive list of errors that a defendant
who confessed guilt is not estopped from raising on appeal: (1) errors violating the Due
Process Clauses of the Fifth and Fourteenth Amendments regarding the right to have
guilt proved beyond a reasonable doubt; (2) errors violating the right in the Double
Jeopardy Clause of the Fifth Amendment to not be subjected to a second trial even
when there is clear evidence of guilt; (3) errors violating the right to refuse to testify
found in the Self-Incrimination Clause of the Fifth Amendment; (4) errors violating the
right found in the Due Process Clause of the Fourteenth Amendment to exclude
coerced confessions; (5) errors violating the Fourth Amendment prohibition against
unlawful search and seizure and illegally obtained evidence; (6) errors violating Article 5
of the Rules of Evidence regarding exclusion of privileged evidence; (7) errors violating
the right to have excluded custodial interrogation statements not conforming to the
requirements of the Code of Criminal Procedure art. 38.22; (8) errors violating the right
to have jurors prevented from asking witnesses questions. 983 S.W.2d at 725.
                                            5
191, 202 n.8 (Tex.App.—Fort Worth 2009, no pet.) (admission of extraneous offense

evidence); Jarmon v. State, 263 S.W.3d 25, 30–31 (Tex.App.—Houston [1st Dist.] 2006,

pet. ref’d) (same); Houston, 208 S.W.3d at 590–91 (same); Kelley v. State, 22 S.W.3d

628, 631 (Tex.App.—Fort Worth 2000, pet. ref’d) (alleged jury charge error); Gutierrez,

8 S.W.3d at 745 (jury note-taking during trial).


       During his testimony at the trial on punishment, appellant confessed to having

had sexual intercourse with B.J.P. Thus, he will be estopped from raising his point of

error on appeal unless we determine that the error of which he complains implicates a

fundamental right. So, we first evaluate the nature of the issue appellant presents to

this Court. That is, we must determine whether the issue appellant raises is one which

implicates fundamental rights or guaranties and, thus, is one that, under Leday, is of the

nature that would survive for our review beyond appellant’s confession.


       Our research yields no case that directly addresses the DeGarmo/Leday

doctrine’s application to assertions that the State struck at defendant over the shoulders

of counsel. We, therefore, look to the treatment of this type of error in other contexts.

See Jarmon, 263 S.W.3d at 30 (for a thorough discussion of the considerations that go

into evaluation whether the error implicates a fundamental right under Leday).


       It is well established that an appellant who fails to raise the complaint that the

State struck at him over the shoulders of counsel forfeits his right to advance his

complaint on appeal. See Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App.

2004); see also Huff v. State, No. 07-10-00174-CR, 2010 Tex. App. LEXIS 9424, *10–

11 (Tex.App.—Amarillo Nov. 29, 2010, no pet.) (mem. op., not designated for

                                             6
publication); Stephenson v. State, 255 S.W.3d 652, 659 (Tex.App.—Fort Worth 2008,

pet. ref’d).   From these cases, we can conclude that the error of which appellant

complains is not considered fundamental error which could be raised for the first time on

appeal.   Further, the Texas Court of Criminal Appeals has consistently and clearly

concluded that error associated with striking over the shoulders of counsel is subject to

harm analysis as nonconstitutional error. See Brown v. State, 270 S.W.3d 564, 572–73,

n.2 (Tex.Crim.App. 2008); Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000);

Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998).


       In anticipation of the State’s argument, appellant cites the Court to Leday and

likens the issue in the instant case to an improper prosecutorial comment on a

defendant’s failure to testify. Appellant does not advance an argument that the State’s

argument in the instant case constitutes an improper comment on appellant’s failure to

testify in the guilt/innocence phase of trial. Rather, he suggests that the argument that

strikes at a defendant over counsel’s shoulders is similar to or should receive similar

treatment as a prosecutorial comment on the failure to testify. We decline to adopt his

analogy. Unlike the issue at bar, a defendant’s privilege against self-incrimination is a

right that is directly and firmly rooted in constitutional law. U.S. CONST. amend. V; Griffin

v. California, 380 U.S. 609, 614, 85 S.Ct.1229, 14 L.Ed.2d 106 (1965); Cruz v. State,

225 S.W.3d 546, 548 (Tex.Crim.App. 2007). Leday recognized this and includes such a

right in its non-exhaustive list of exceptions to the estoppel-by-confession principle. 983

S.W.2d at 725.




                                             7
        Drawing upon cases that characterize the type of error which appellant urges

here as forfeitable by inaction and nonconstitutional in nature, we conclude that such

error does not implicate fundamental rights and, thus, is not in the category of error that

would survive for our review under Leday after appellant confessed to having committed

the offense. Under Leday, appellant is estopped from complaining of improper jury

argument after he admitted during the punishment trial that he committed the offense,

and our review of this issue on these facts is precluded. Accordingly, we overrule

appellant’s sole issue on appeal.


                                       Conclusion


        Having overruled appellant’s sole point of error, we affirm the judgment of the

trial court.3




                                                       Mackey K. Hancock
                                                            Justice




Publish.




        3
         In addition to joining the majority’s opinion, C.J. Quinn would also overrule the
issue because the utterance, when viewed in context, would not be one that reasonable
jurors would interpret as commenting upon appellant’s right to remain silent.
                                            8
