                                NUMBER 13-07-00520-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

SHARONICA DILWORTH,                                                             Appellant,

                                               v.

THE STATE OF TEXAS,                                                              Appellee.


                       On appeal from the 24th District Court
                            of Jackson County, Texas.


                             MEMORANDUM OPINION
                      Before Justices Yañez, Garza, and Vela
                      Memorandum Opinion by Justice Garza
          Appellant, Sharonica Dilworth, was found guilty of intentionally or knowingly causing

serious bodily injury to a child, a first-degree felony. See TEX . PENAL CODE ANN . §

22.04(a)(1), (e) (Vernon Supp. 2008). Dilworth was sentenced to 65 years’ imprisonment

and was assessed a $10,000 fine. She now appeals her conviction, contending by two

issues that the prosecutor engaged in misconduct, and by one issue that the court erred

in denying her counsel the opportunity to voir dire the jury on the issue of punishment. We

affirm.

                                        I. BACKGROUND

          On May 29, 2007, a Jackson County grand jury indicted Dilworth on four counts of
causing serious bodily injury to a child.1 See id. On July 30, 2007, Dilworth filed a timely

sworn motion for community supervision, entitled “Application for Community Supervision

From The Jury.” See TEX . CODE CRIM . PROC . ANN . art. 42.12, § 4(e) (Vernon Supp. 2008).

The motion read in its entirety as follows:

           APPLICATION FOR COMMUNITY SUPERVISION FROM THE JURY

                        TO THE HONORABLE JUDGE OF SAID COURT:

                 Now comes Sharonica Dilworth, Defendant in the above entitled and
         numbered cause, before the trial of this case has begun, and, as required by
         law, files this Application for Community Supervision and moves that, in the
         event of conviction, Sharonica Dilworth be granted community supervision
         in said cause, and in support of this motion, Sharonica Dilworth shows the
         following:

                Sharonica Dilworth has never before been convicted of a felony in the
         State of Texas or any other State.

                WHEREFORE, PREMISES CONSIDERED, Sharonica Dilworth prays
         that community supervision be granted for whatever punishment may be
         assessed in this cause in the event that Sharonica Dilworth is convicted.

         During pre-trial proceedings on July 30, 2007, Dilworth’s counsel suggested to the

trial court that the motion for community supervision served as an election to have the jury

assess punishment, and consequently that voir dire was necessary as to the issue of

punishment. The trial court, ruling that Dilworth did not meet the requirements of section

2(b) of article 37.07 of the Texas Code of Criminal Procedure, found that no proper election

was made to have the jury determine punishment. See id. art. 37.07, § 2(b) (Vernon Supp.

          1
            The indictm ent contained four counts, with each count consisting of two paragraphs. The first count
alleged that Dilworth knowingly or intentionally caused bodily injury to a child, J.S.; the second count alleged
that Dilworth did so recklessly; the third count alleged that Dilworth did so with crim inal negligence. See T EX .
P EN AL C OD E A N N . § 22.04(a)(1) (Vernon Supp. 2008) (providing that a person com m its an offense if she
intentionally, knowingly, recklessly, or with crim inal negligence, by act or intentionally, knowingly, or recklessly
by om ission causes serious bodily injury to a child). The first paragraph of each of the first three counts
alleged that Dilworth threw the child from the stairs, dropped the child from the stairs, and allowed the child
to fall from the stairs, respectively. The second paragraph of each of the first three counts alleged that
Dilworth caused serious bodily injury to J.S. “by a m anner and m eans unknown to this Grand Jury.”

          The fourth count alleged that Dilworth caused serious bodily injury to J.S. by om ission while, as the
child’s m other, she had a legal and statutory duty to protect and provide m edical care to the child. See id. §
22.04(b) (Vernon Supp. 2008) (providing that an om ission causing serious bodily injury to a child is an offense
if the actor has a legal or statutory duty to act). The first paragraph of the fourth count alleged that Dilworth
intentionally or knowingly failed to provide m edical care; the second paragraph alleged that Dilworth recklessly
failed to do so.

                                                         2
2008). Dilworth’s counsel was therefore denied the opportunity to conduct voir dire on the

issue of punishment.

       Prior to the commencement of trial on July 31, 2007, the prosecutor indicated that

he would be willing to consent to Dilworth’s election to go to the jury for punishment if she

waived any objection with regard to the fact that voir dire had not been conducted on the

issue of punishment. See id. (stating that “[i]f a finding of guilty is returned, the defendant

may, with the consent of the attorney for the state, change his election of one who

assesses the punishment”). Specifically, the following exchange occurred:

       [State’s attorney]:          . . . Having reflected on it last night, I’m agreeing,
                                    if the Defense wants to, I’ll agree to let them
                                    change their election to go to the jury, provided
                                    that they agree on the record that they have no
                                    objection to the fact that the jury wasn’t voir dired
                                    on probation; that if they do have objection to
                                    that then, of course, I will not withdraw my letting
                                    them use the election, because I don’t think it
                                    would be fair to let them have what they want but
                                    then at the same token let them have an avenue
                                    of appeal. So with that stipulation the State
                                    would—with those stipulations the State would
                                    withdraw any objection to the defendant
                                    changing her election to go to the jury for
                                    punishment.

       THE COURT:                   [Dilworth’s attorney]?

       [Dilworth’s attorney]:       And we’re not going to—we have no objection to
                                    the jurors not being voir dired on the punishment
                                    phase.

       THE COURT:                   So you’re waiving any objection that might arise
                                    from that?

       [Dilworth’s attorney]:       Yes, Your Honor.

       THE COURT:                   And do you state now, because I don’t want to
                                    do this again—

       [Dilworth’s attorney]:       Yes, Your Honor.

       THE COURT:                   —are you going to the jury for punishment?

       [Dilworth’s attorney]:       Yes, Your Honor. On the record, we are going to
                                    the jury for punishment.

                                              3
        On August 3, 2007, the jury found Dilworth guilty of causing serious bodily injury to

a child by act or omission.2 See TEX . PENAL CODE ANN . § 22.04(a)(1), (e). At the

punishment phase of the trial, which was conducted before the jury, the prosecutor stated

the following as part of his closing argument:

                You know, sometimes as your prosecutor of trying these cases and
        with defendants having so many rights, I feel like I’m trying to hold the ocean
        back with a broom or sweep the sun off the porch with a broom. They’ve got
        so many rights. I understand. You know, before I completely despair I think,
        wait a minute, Bobby, they’ve got to go through a jury. Before they just get
        to run roughshod on this, they’re going to have to face a jury who will make
        the ultimate decision.

                ....

                I try not to get the Bible out and thump it, and I’m not, but, also, my
        faith is important to me. You know – and I know that when you’re sitting
        there God knows you’re thinking come on, Bobby, are we really going to
        have anything to say about – will this really deter anybody? Well, think of it
        like this. I think it’s in James. No, I know it’s in James 3, 2 to 4. It says:
        God said that a small bit in the mouth of a horse can turn that horse – that
        large horse. And a tiny rutter [sic] can turn a huge ship. And I promise you,
        people listen. And your verdict can and will deter people.

                ....

                 You know, in Matthew it says that should anyone injure one of these
        little ones of mine, Jesus said, better that he would have a millstone around
        his neck and be cast into the sea. That’s the severity of this type of crime.

                And I promise you this. As your prosecutor in handling these types of
        cases, you’ll never have in this county law and order until you have severity
        of sentence. It won’t happen. A lot of prosecutors won’t get up here and talk
        to juries like this because it takes a lot of courage to do what you’re doing.

                ....

                I’m your prosecutor. Every day I have defense lawyers coming to me,
        “Well, Mr. Bell, what will you give me for this crime, what will you give me for
        this crime?” I feel like Monte [sic] Hall and Let’s Make A Deal. I’ll tell you
        this, though. I listen to you. Make no mistake about it, I listen to you. If you
        tell me that people who abuse children, defenseless little babies, then cover
        it up and are more concerned about themselves, if you want them to get light
        verdicts, probation, whatever, I’ll listen to you. I don’t believe that. I will
        listen to you. The next time that this happens I’ll say no, I have presented

        2
          The jury charge only asked whether Dilworth was guilty of: (1) the offense alleged in the second
paragraph of Count 1 of the indictm ent; or (2) the offense alleged in the first paragraph of Count 4 of the
indictm ent.

                                                     4
         this type of case and the jury told me this is what they want. And I’ll dig my
         heels in the sand and if it means having a trial and taking up your week, I’ll
         do it, because it’s by God the right thing to do.

         Following the punishment hearing, the jury assessed Dilworth’s punishment at 65

years’ confinement in the Institutional Division of the Texas Department of Criminal Justice,

and a $10,000 fine. The trial court certified Dilworth’s right to appeal on August 23, 2007,

and this appeal followed.

                                               II. DISCUSSION

A.       Prosecutorial Misconduct and Constitutional Error

         By her first two issues, Dilworth claims that: (1) the prosecutor’s references to the

Bible during the punishment phase of the trial violated the Establishment Clause of the

First Amendment to the United States Constitution, see U.S. CONST . amend. I, and the

corresponding provision of the Texas Constitution, see TEX . CONST . art. I, § 6; and (2) the

prosecutor’s statement with regard to defendants’ rights deprived her of a fair and impartial

trial.

         In order to preserve error in cases of prosecutorial misconduct, the defendant must

(1) make a timely and specific objection, (2) request an instruction that the jury disregard

the matter improperly placed before it, and (3) move for a mistrial. Cockrell v. State, 933

S.W.2d 73, 89 (Tex. Crim. App. 1996). Here, Dilworth’s trial counsel failed to object to

either the prosecutor’s references to the Bible or his statement with regard to defendants’

rights. The State contends that Dilworth waived this issue because her trial counsel did

not object to the statements when they were made.3


         3
            The State also urges that Dilworth’s first issue is m ultifarious and therefore presents nothing for
review. In response, Dilworth argues that the current appellate rules do not perm it a court to overrule an issue
or point of error as m ultifarious, citing Chimney v. State, 6 S.W .3d 681, 688 (Tex. App.–W aco 1999, pet.
ref’d), for this proposition. However, we have held since Chimney that m ultifarious points present nothing for
review. See Taylor v. State, 190 S.W .3d 758, 764 (Tex. App.–Corpus Christi 2006), rev’d on other grounds,
233 S.W .3d 356 (Tex. Crim . App. 2007); see also Thieleman v. State, No. 13-03-570-CR, 2006 Tex. App.
LEXIS 9458, at *24 (Tex. App.–Corpus C hristi Oct. 26, 2006, pet. ref’d) (not designated for publication).
Nevertheless, we m ay elect to consider m ultifarious issues if we are able to determ ine, with reasonable
certainty, the alleged error about which the com plaint is m ade. Stults v. State, 23 S.W .3d 198, 205 (Tex.
App.–Houston [14th Dist.] 2000, pet. ref’d); see also Cadena v. State, No. 13-03-485-CR, 2004 Tex. App.
LEXIS 6842, at *2 (Tex. App.–Corpus Christi July 29, 2004, no pet.) (m em . op., not designated for

                                                       5
        Dilworth argues that the issue is not waived because the alleged error was

fundamental. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (if no

proper objection made at trial and the accused must claim that the error was

“fundamental,” he will obtain a reversal only if the error is so egregious and created such

harm that he “has not had a fair and impartial trial”). Dilworth further argues that the

prosecutor’s references to the Bible amounted to “structural” error, rendering the trial

fundamentally unfair and obviating the need for her trial counsel to object. However, she

does not cite authority supporting this contention.

        Dilworth does cite Lucero v. State, 246 S.W.3d 86, 89 (Tex. Crim. App. 2008), in

which the Texas Court of Criminal Appeals considered whether it was structural error for

the trial court to have denied the defendant an evidentiary hearing on his motion for new

trial based on the jury’s reading of Biblical scripture during the punishment-phase

deliberations. The court found that any error was harmless because the record revealed

no “reasonable grounds” for concluding that the Bible references affected the jury’s verdict.

Id. at 95 (citing Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003) (defendant

is entitled to hearing on motion for new trial to make a record of matters not determinable

from the record if the defendant establishes the existence of “reasonable grounds” showing

that the defendant “could be entitled to relief”)). Dilworth also cites Granados v. State, 85

S.W.3d 217, 234-36 (Tex. Crim. App. 2002), in which the court of criminal appeals

considered whether the trial court erred in denying the defendant’s motion for mistrial

based on a juror’s request to read Bible passages to the jury. The trial court denied the

juror’s request, and Granados then asked the trial court to inquire as to whether the juror

had already concluded that the defendant would receive the death penalty. Id. at 234-35.

The court denied the request, “saying that it would be improper and unconstitutional to

instruct jurors that they cannot consult books of faith in times of spiritual need.” Id. at 235.


publication). Because the alleged error to which Dilworth objects is clear, we elect to address her first issue.

                                                       6
Finally, Dilworth cites Duggan v. State, 778 S.W.2d 465, 468 (Tex. Crim. App. 1989), for

the following proposition:

         As a trustee of the State's interest in providing fair trials, the prosecutor is
         obliged to illuminate the court with the truth of the cause, so that the judge
         and jury may properly render justice. Thus the prosecutor is more than a
         mere advocate, but a fiduciary to fundamental principles of fairness.

Id. (citing Berger v. United States, 295 U.S. 78, 88 (1935)). Dilworth claims that “the

prosecution denigrated the rights of the accused,” and that a fundamental error therefore

occurred.

         Neither Lucero, Granados, nor Duggan support Dilworth’s contention that the

prosecutor’s references to the Bible or comments on defendants’ rights amounted to

structural or fundamental error. Nor do they support her contention that those statements

violated her constitutional rights. Dilworth’s first two issues are overruled.

B.       Waiver of Voir Dire on Punishment

         By her third issue, Dilworth contends that the court erred by not giving her trial

counsel the opportunity to voir dire the jury on the issue of punishment. Specifically,

Dilworth argues that the trial court erred when it ruled that the document she filed prior to

trial, entitled “Application for Community Supervision From The Jury,” did not serve as a

valid election to have the jury assess punishment under section 2(b) of article 37.07 of the

Texas Code of Criminal Procedure.4 The State contends that Dilworth waived this issue.

Without determining whether Dilworth’s “Application for Community Supervision From The



         4
             Section 2(b) of article 37.07 of the Texas Code of Crim inal Procedure provides:

         Except as provided by Article 37.071 or 37.072, if a finding of guilty is returned, it shall then
         be the responsibility of the judge to assess the punishm ent applicable to the offense;
         provided, however, that (1) in any crim inal action where the jury m ay recom m end com m unity
         supervision and the defendant filed his sworn m otion for com m unity supervision before the
         trial began, and (2) in other cases where the defendant so elects in writing before the
         com m encem ent of the voir dire exam ination of the jury panel, the punishm ent shall be
         assessed by the sam e jury, except as provided in Section 3(c) of this article and in Article
         44.29. If a finding of guilty is returned, the defendant m ay, with the consent of the attorney
         for the state, change his election of one who assesses the punishm ent.

T EX . C OD E C R IM . P R O C . A N N . art. 37.071 (Vernon Supp. 2008).

                                                             7
Jury” served as an effective election to have the jury assess punishment, we agree with

the State that Dilworth waived the issue.

       As noted, neither party conducted voir dire on the issue of punishment due to the

trial court’s determination that Dilworth had not properly elected to go to the jury for

punishment. The State’s attorney later offered to consent to go to the jury for punishment

on the condition that Dilworth waive any objection she may have had to her lack of an

opportunity to voir dire the jury on that issue. Dilworth’s attorney agreed to the bargain,

stating expressly that “we have no objection to the jurors not being voir dired on the

punishment phase.” Dilworth now claims that “[s]he did not on the record waive the right

to voir dire on punishment and did not on the record understand the right she waived.”

However, Dilworth does not point to any authority indicating that her trial counsel lacked

the authority to waive this objection. See TEX . R. APP. P. 38.1(h).

       We conclude that Dilworth’s trial counsel effectively waived any objection she may

have had to her lack of an opportunity to voir dire the jury on the issue of punishment.

Accordingly, her third issue is overruled.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed.



                                                 DORI CONTRERAS GARZA,
                                                 Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 4th day of December, 2008.




                                             8
