There was little doubt that Anthony Rashad George participated in the November 2016 robbery of 46-year-old Brian Sample in a North Dallas, Texas luxury hotel. A second person, Rodney Range, was also charged with capital murder for participating in that robbery. Two local women were also on the peripheral edges of the robbery.
Sample, who was highly intoxicated on various drugs at the time, was beaten during the robbery, zipped tied, and left to die in the hotel room.
George was indicted for capital murder, tried and convicted by a jury, and sentenced to life in prison. He appealed the conviction, arguing that the evidence was insufficient for the jury to find that he actually murdered Sample or could have anticipated that Range would murder him. This issue was rejected on appeal under Texas’s “law of parties” rule; namely, that a party may be guilty of a murder if they promote or assist in the crime even though they did not actually kill the victim.
Improper Jury Argument
The most significant issue George raised in his appeal was that the prosecution engaged in improper jury arguments. The Fifth District Court of Appeals on November 6, 2019 heard and rejected this argument.
During its closing argument, the prosecution stated that, “It is absolute[ly] foreseeable that any robbery is gonna result in murder.” George’s defense attorney objected that the statement was improper and outside the record, moved for a jury instruction to disregard, and requested a mistrial. The court issued the jury instruction but refused to grant the defense motion for a mistrial.
Texas law is clear—a motion for mistrial is an extreme remedy that will be granted for improper jury arguments only when the argument, as the appeals court stated, is “clearly calculated to inflame the jurors’ minds and is of such a character as to suggest the impossibility of withdrawing the impression on the jurors’ minds, or when the impropriety is ‘so prejudicial that expenditure of further time and expense would be wasteful and futile.’”
Following precedent by the Texas Court of Criminal Appeals, the Dallas appeals court pointed out there is a three-prong criteria an appellate court must weigh in determining whether a curative instruction to disregard was sufficient to address an improper jury argument. That criterion is: 1) severity of the [prosecutorial] conduct, 2) the curative measures taken by the trial court, and 3) the certainty of conviction absent the conduct.
The appeals court agreed that the argument that the foreseeability of any robbery will result in murder is improper but it falls short of the “extremely inflammatory” kinds of argument that warrant a mistrial. The reviewing court added that it did not believe that the prosecution’s improper argument was “a willful and calculated effort to deprive appellant of a fair and impartial trial.”
The appeals court then offered subtle criticism of the way defense counsel handled their objection to the improper argument in the prosecution’s closing rebuttal.
In rebuttal, the prosecution stated, “[t]he evidence is clear to assume that one person couldn’t have done this.”
Defense counsel objected to this statement but failed to object to an earlier rebuttal statement by the prosecution, “You think just one person went in there and was able to zip tie [the victim].”
Defense Must Object to Every Instance of Improper Argument
The appeals court pointed out that under Texas case law “when a defendant objects to one instance of an improper argument, but fails to object to other instances of the same or similar argument, he waives the complaint.”
Lurking below this criticism of defense counsel, however, lays the real flaw in this case.
As the appeals court noted, improper jury argument, which in itself is considered “prosecutorial misconduct,” is a “non-constitutional error that must be disregarded unless it affects a defendant’s substantial rights.” In order to affect a defendant’s substantial rights, the misconduct must be “extreme or manifestly improper” based on a review of the “entire record of final arguments to determine if there was a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial.”
Let us consider the argument from a defense perspective: there is foreseeability that any improper jury argument is a willful and calculated effort by the prosecution to deprive a defendant of a fair and impartial trial.
The bottom line is this: improper jury arguments have no place in the criminal trial process—and this type of prosecutorial misconduct should never be excused, as it was by the appeals court in the George case, through direct or subtle criticism of defense counsel.