*1 deposition. appear at Fred Rizk to order Houston order conflicts with court’s its December court’s determination Clubs, Ap The trial First Court Inc. v. Health issues PHB, disposed of all (Tex.1986), order peals, 722 S.W.2d contrary to Houston Health parties is Goldsmith, Inc., 589 S.W.2d PHB, Inc., Inc., and Pan American Clubs, 1976), Pan American Petroleum an abuse Co., and constitutes Corp. 159 Petroleum Corp. Texas Coal & Oil Pacific argument and (1959). Without oral of discretion. Tex. 122, majority Tex.R.App.P. pursuant final, summary judgment To be conditionally grants the writ of this court in a parties and issues dispose of all must of mandamus. Duddlesten, 664 S.W.2d lawsuit. Teer v. (Tex.1984). presumption that disposes parties of all judgment a final court after a trial before the
issues judgments apply to default
merits does Health summary judgments. Houston Clubs, Appeals, 722 v. First Court Inc. (Tex.1986). summary If 692, 693 mention is does not refer to or judgment BORJAN, Appellant, E. Carlos counterclaim, then those pending sues Baker v. unadjudicated. remain issues (Tex.1984);
Hansen, Texas, Appellee. STATE PHB, Goldsmith, Inc. No. 1055-86. (Tex.1976). present order Because not men granting summary judgment does Texas, Appeals of of Criminal of the issues in Greenbr- tion or refer all En Banc. counterclaims, interlocutory. it is iar’s March erroneously asserts Greenbriar of all summary judgment disposes that a are not pending
issues when counterclaims may summary judgment A be
severable. single
granted separate issues within a 166a(a).
cause of action. TEX.R.CIV.P. partial summary judgment is
Such a are ei
interlocutory until all of the issues severed adjudicated
ther or ordered American Petroleum
trial court. Pan Co., 159 Corp. v. Texas Coal & Oil Pacific (1959). The finali
Tex. judgment is not
ty summary based issues, causes severability parties, case, present a deter Id. In the
of action. counterclaims
mination that Greenbriar’s transform the could not
were not severable interlocutory judgment
nature of
to final. summary judgment is inter
Because jurisdiction to trial court has
locutory, the holding the December pre- judge’s opinion, order appeals unpublished the current of siding judge, Judge Judge Lindsay, disposed issues and has concluded of all 1988 order plenary jurisdiction over the lost ac- Lindsay’s subsequent the court has take further refusal to opinion in this case. References in the case. tion original encompass both the court’s order *2 Antonio, Dist. Thornberry, Atty., Asst. San Huttash, Austin, Atty., for Robert State’s the State. FOR
OPINION ON STATE’S PETITION DISCRETIONARY REVIEW PER CURIAM.1 guilty appellant was found rape aggravated offense of a child and of punishment twenty-five years of assessed a Department Texas of confinement in the 22.021, Penal Corrections. See Tex. § majority panel A of a of the Fourth Code. appellant’s Appeals Court of reversed the improper jury conviction on the basis of an punishment phase. argument during the (Tex.App. Borjan 1986, pet. granted). The San Antonio State’s was held to be “outside record, spec called evidence, ulate about matters not in was passion preju calculated to arouse the jury, extremely harm dice was Id., By way of prejudicial.” ful and at 98. error, challenges points three the State holding appeals. of the court of having guilty found appellant was old year sexual with his intercourse twelve closing During stepdaughter. the State’s argument, following transpired: you begin I urge you, So when deliber- there, ating, you go back think crimes, think of the the victims these forward, can’t ones who never come who everybody stand tell it. I object, I think counsel]: [Defense it’s— They rights. have some [State]: THE Just moment. COURT: preju- I think it’s counsel]: [Defense inflammatory and outside dicial and record. (court Antonio Langlois, E. San objection.
Richard I THE COURT: overrule appellant. appointed), exception. my Note counsel]: [Defense min- got two Jr., Atty., THE You’ve Millsap, Former Dist. COURT: D. Sam Rodriguez, Atty., Daniel utes. Dist. Fred G. Judge opinion Court. opinion prepared was M.P. Dun- This can, III, adopted prior to and is as the his death addition, you, testifying Thank Your Honor. This silence. In doctor
[State]: trial, essence, Kathy’s day has been explained had that adolescent children have court, old, old, years years years things. difficulty discussing extreme such back, going old and carry she’s it with Initially, the State contends that time, long her for a for the rest of her appeals’ court of decision is in conflict with life. the decision of this Court Stone v. *3 Here is an individual who should know (Tex.Cr.App.1978).2 85 The 574 S.W.2d better, advantage who took of the situa- prosecutor’s State also contends that the tion, her, you’re going abused to let argument was a reasonable inference him out? Please don’t Let him do that. drawn evidence the record. you really know how feel about this. proper jury It is well established Kathy’s How much is it This worth? argument day in court. must fall within one of the fol- Doesn’t she deserve some- For the ones who never thing lowing (1) for this? categories: summary of the evi- it, you come and tell about who are too dence; (2) reasonable deduction from the frightened [emphasis evidence; (3) response argument added] — counsel; (4) opposing plea for law en- appellant The objection his renewed State, forcement. Madden v. 721 S.W.2d which the trial court overruled. 859, Alejandro v. (Tex.Cr.App.1986); 862 appeals The court of held that the State’s State, 493 230 (Tex.Cr.App.1973). S.W.2d argument improper, doing was so wrote: Initially, the State contends that the com plained argument proper prosecutor’s plea
The
was a
for
argument
called
Stone,
supra.
relying
law enforcement
about other victims
rape.
The
properly
proper plea
could have
A
for
may
law enforcement
appellant
raped
inferred that
forms,
had
others
many
take
argue
one of which is to
reported
who had not
the offense. The
relationship
jury’s
between the
verdict
only logical
deduction is that
general.
and the deterrence of crime in
was asked to assume facts
evi-
State,
Shippy v.
246,
(Tex.
556
257
S.W.2d
dence to reach a decision in the assess- Cr.App.1977);
State,
Bowman v.
446
punishment.
ment of
The test for deter-
Grant v.
(Tex.Cr.App.1969);
mining
prosecutor’s
whether
State,
444,
162 Tex.Cr.R.
286
422
S.W.2d
ment mandates a reversal is based on the
(1956).
notes,
As the State
this Court has
probable
effect the
had on the permitted
argue
ju
jurors.
minds of the
specific
by
ries should deter
crimes
their
Id., at 97-98.
State,
verdict. See Wilson v.
605 S.W.2d
284,
Port
(Tex.Cr.App.1980)(robbery);
287
dissenting opinion
contended that
State,
er v.
721,
(Tex.Cr.
601 S.W.2d
723
the State’s
proper plea
was a
for
¶.
State,
(robbery); Bacon
App.1980)
500
adequate punishment and law enforcement.
(Tex.Cr.App.1973)
512
Furthermore,
(robbery);
S.W.2d
the dissent claimed that the
State,
Arocha v.
957,
495
State’s
was a
S.W.2d
959
reasonable infer-
(sale
Cr.App.1973)
substance);
ence from the record
of controlled
because the record
appellant
88,
revealed that the
Owens
had threatened
168
Tex.Cr.R.
323
physical
260,
(1959) (murder);
the victim with
Urteago
harm to secure her
S.W.2d
review,
ground
In the second
Tex.R.App.Pro.
may
for
the State also
ed in Rule
While this
ap
true,
contends that the decision
the court of
very
apparent
well be
"conflict” in this
peals
previous
is in conflict with a
decision of
necessitating
rise
case does not
to a level
review
that court in
Gonzales
examining
this Court. After further
our de-
1986).
(Tex.App.
Antonio
— San
grant
point,
cision to
review on this
we find that
recognizing
While
that a conflict of decisions
our decision to hear the case for this reason was
single
appeals
specifical-
within a
court of
is not
improvidently granted.
review,
ly
granting
enumerated as a reason for
rehearing
We note that the State’s motion for
argues
the State
that the enumerated reasons
Appeals
before the Fourth Court of
en banc had
are non-exclusive and that this conflict is of the
previously been denied.
same "character of reasons" as those enumerat-
Tex.Cr.R.
133
mitted to the of the segment community, of was cor- ticular the up the groups making verdict narrower rectly proper plea classified as a for law “community.” example, For this Court has however, appellant, The dis- enforcement. permitted arguments on of en- behalf law Stone, supra, tinguishes argument the of forcement officers who were the victims argument present from the in the case. v. Rhodes See, e.g., a offense. criminal appellant prosecutor State, contends that the 329, (Tex.Cr. 450 331-332 S.W.2d Stone, supra, clearly referred to “other” approved App.1970). This Court has also subjected were to sexual children who rights arguments on behalf of the by committed those “other” than the abuse subjected drunken driv- highway drivers so, State, By doing prosecutor defendant. 478, ers. Strahan v. Tex.Cr.R. 172 Stone, supra, properly asked the jury (1962). Likewise, impact consider the of their verdict permitted arguments on has behalf the com- State, narrower class of children within of women and children. Stone v. appellant in this munity. The claims case State, 349, supra; Carver v. 510 S.W.2d narrow that the did not its v. Anderson (Tex.Cr.App.1974); 355-356 jury invited the sufficiently, but instead (Tex.Cr.App. 486 572 S.W.2d been vic- speculate that other children had Myers v. 1972); S.W.2d 468 appellant were too timized but (Tex.Cr.App.1971). types These 848-849 afraid come forward. arguments permissible in that the their reminded of the effect that verdict for, pre provides The law rights particular may have on the trial, argu from sumes fair free community. segment Dickin attorney. prosecuting v. son plea that a S.W.2d It is well established State, 158 Tex. Richardson categories App.1984); four enforcement is one jury argument. Landry (1953). An im- proper Cr.R. proper argument directly indirectly, jury, constitutes reversible er- either or evi is outside the record. Jordan light ror when of the record as a whole it dence which viola- manifestly improper, (Tex.Cr.App. or was extreme statute, mandatory 1983). tive of injected new facts harmful to the accused into the question which we must answer Phillips v. proceedings. in the is whether State’s (Tex.Cr.App.1985); Vine- present case is similar to the yard v. 131 Tex.Cr.R. Stone, supra, proper in deemed whether (1973). S.W.2d 362 was outside the record and Thus, prohibited clearly upon called about making during reference final appellant may crimes that the other have ment to extraneous offenses for which the against An committed other children. an on trial. Melton v. currently accused is not question solely swer to this will rest
State, (Tex.Cr.App.1986).
S.W.2d 107
logical interpretation
argu
of the State’s
Accordingly,
if the extraneous of-
even
ment and the context within which it was
trial,
during
pros-
fenses are admissible
used.
pun-
ecutor cannot ask the
to assess
words,
In other
the issue which we must
ishment for these collateral crimes and add
prosecutor’s
resolve is
whether
refer-
penalty
punishment being
such
as-
ence to the “victims of other crimes” and
sessed. Brown v.
“the ones who never come and tell
Klueppel
(Tex.Cr.App.1975);
appeal
it” was an
*5
impact
consider the
of their verdict on sex-
Likewise, prosecutor
may not use clos ually
general,
abused children in
or wheth-
ing argument
get
to
evidence before the
er,
prosecutor’s argument
the
called on the
jury which is outside the
preju
record and
jury to consider either the existence of
State,
dicial to the accused. Everett
appellant
other adolescent victims of the
638, 641 (Tex.Cr.App.1986);
Jack
S.W.2d
appellant
punishment
to assess the
further
State,
(Tex.Cr.
son v.
S.W.2d
because other children have been victim-
App.1975). This
long
Court has
held that
ized.
reference to facts that are neither in evi
resolving
In
necessary
this issue it is
to
dence, nor inferable from the evidence is
analyze
only
prosecutor
not
what the
said
State,
Johnson v.
improper.
say.
but also what he did not
When the
Fuentes v. prosecutor
(Tex.Cr.App.1985);
phrase
used the
“these crimes”
priate. Campbell v.
However,
appellant.
by phras-
the
tims of
Steam v.
(Tex.Cr.App.1980);
did,
ing
comment
in
the
as he
essence
(Tex.Cr.App.1972); King
59 jury. straight argue well no jacket they as be See Adamson v. Cali- sort of 46, 53, 1672, 1676, because, fornia, jury, 332 U.S. 67 S.Ct. before the within the ex 1903, (1947), tremely by 91 L.Ed. 1909 overruled elastic boundaries defined this grounds, Court, Malloy Hogan, they permitted other v. 378 U.S. to soar to such 1489, (1964). eloquence techniques oratory S.Ct. L.Ed.2d 653 as their I, presentation permit. “They may Also see Art. Texas Constitution. rollick § illustrations, metaphor supposi and use Improper jury by prosecu- instances,” hypothetical tions and O 'Brien by tion is not countenanced the courts of Co., 214 Railway v. Boston Elevated Mass. Nation, as and Federal “[b]oth 277, 280, stay provided they 101 N.E. governing the proper jury law limits of Court, within boundaries set argument by prosecuting attorney find Alejandro which are set out in v. fairness, their source in notions of and the (Tex.Cr.App.1973). 231-32 right same source from which flows the process Estelle, due of law.” Houston v. Prosecuting attorneys should never ask (5th Cir.1978),rehearing 569 F.2d jurors on the law not before opinion, denied en banc without 572 F.2d them or on facts the case not admitted (5th Cir.1978). Also see Brown v. Es- evidence, deciding into or to consider in telle, F.Supp. (N.D.Tex.1978). guilt defendant’s extraneous and collateral offenses, which have not been admitted elementary It is object now that the evidence, into prosecuting nor should attor principal purpose neys argue hypothetical defenses a defen attorneys is to aid and assist the might presented, dant have Garrett properly analyzing the admitted evi (Tex.Cr.App. dence so that it can just arrive at a 1982), they get nor attempt should ever reasonable conclusion based evi jury, indirectly, before the either directly or dence alone. Dickinson v. matters which are outside of the record. (Tex.Cr.App.1984). Jordan S.W.2d 946 for, provides presumes trial, a fair App.1983). summary, prosecuting In at free jury argument by torney, although blows, free to strike hard prosecuting attorney. Richardson ones, liberty not at to strike foul either directly indirectly. Jordan, or Improper argument part pros page at ecuting attorney prosecut occurs when the ing attorney violates a mandatory provision A prosecuting attorney occupies posi- statute, of a makes a manifestly improper, great tion of responsibility, power, authori- harmful, prejudicial argument, injects ty, trust, personal and his desire for through his some new and harm victory, great, no always matter how
ful fact into the
Vineyard
case.
placed
trial,
during
on the backburner
no
*7
476,
131
(App.
Tex.Cr.R.
This, course, pros- does not mean that of himself behalf or the victim of ecuting attorneys placed in alleged are to be some crime that the accused is to have
60
State,
State,
emperor.”
709
Vargas
Dorsey v.
S.W.2d
committed.
v.
128 Tex.Cr.R.
207,
J.,
(App.1935); Rougeau
(Teague,
I that some reliance Stone will, by relying upon today’s (Tex.Cr.App.1978), panel opinion in the future of this trap majority opinion, Court, fall into the same panel composed was which attorney fell into prosecuting Davis, that another Judges Douglas, Tom and Vollers. long ago. Many prosecutors not too of this upon one relies as authori- Before Stone State who read and studied this Court’s broad, statement, ty support general State, 644 Montelongo decision of permissible prosecuting that for the it (Tex.Cr.App.1983), be well attorney argument jury in his to the lieved, so, correctly permis that it was urge protect the citizens of the imaginary sible to draft an Christmas card women, children, county, con- one must deceased, argue from the and then Stone, sider the fact that in there was card, jury the contents of the and that such that another and evidence distinct child-vic- approved by would be this Court naked, tim, performed on while oral sex in Montelongo. under The naked, appellant, pho- who was also and a Washington v. tograph was taken this event. Another refused, 1983), App.-14th State’s P.D.R. photograph showed that this same child-vic- obviously he made the believed performed appellant's tim oral sex on wife. almost identical that made was however, cause, In this no such extraneous Montelongo. judg in Was the trial court’s testimony offense was before the appeals ment affirmed? No. The court of deciding in appellant’s its consideration By reversed. What did this do? Court guilt. refusing petition the State’s for discretion review, Court, ary denying majority opinion its for re of this motion after hearing, doing in both of which the relied many State what members this and oth- Montelongo, its “white horse case” of appellate er courts of this Nation have implicitly disapproved is, at least past, put done in the that to first their argument, leaving that obviously thus one opinions flowery, legal language as to what prosecuting attorney appellate and one as proper improper jury constitutes attorney sistant district of this State in a prosecuting attorney, rules that state of bewilderment. prosecutor’s statement that referred to “victims of other crimes” amounts to noth- The record of this cause reflects ing “appealed more than a comment that appeal appellant complained direct about impact to consider the of their prosecutor’s argument urged sexually gen- children in verdict on abused about of other and victims eral,” those who “never come forward” like crimes which had occurred the com- Thus, particular. majority because munity, about which there was no evidence prosecutor’s argument to opinion reads the jury. argued ap- before the State referring possible that he was mean does, peal, usually prosecu- it as that the existed in the sexually abused children who nothing tor’s was more than a come for- community, and who have never plea A majority for law enforcement. ward, proper plea for law that this was a Appeals, the San Antonio Court of in a prose- argument because the enforcement majority opinion by Tijerina, joined Justice specifically he was cutor did not state that Esquivel, disagreed, therein Justice referring sexually to other abused child assertion, correctly rejected the State’s appellant might had in victims that have you that asserts “when [the past, about which there is no evidence jury] go deliberate], there back think [to opin- majority us. The the record before crimes, of these think of the victims “It must noted that nei- ion states: be forward, ones never come can’t who who prosecutor directly ther comment did the everybody to tell For stand about ... appellant. His comments were refer to the tell the ones who never come and general. it,” community directed to the Con- nothing plea for more than a sequently, is correct that his com- opinion majority law enforcement. The *9 also, proper plea constituted a for implicitly, rejected albeit the State’s ments
enforcement_”
slip
(Page
opinion.)
(Tex.App.-14th
9 of
gument matters the record frightened.” Today, long too argument inviting clearly improper; is but prosecutor’s argu- standing rule that a dangerous speculation is more even be- places ment new that before the imagination cause it leaves to the of each that were harmful facts neither evidence may ‘facts’ juror whether extraneous be nor from the is inferable evidence support needed to a conviction assess [or on punishment]. Logical obviously placed deductions from evi- this Court’s back- permit logical do not the rule dence within being. burner for the time deductions from nonevidence.” Also see decision, course, This should Court’s Jordan, page at bring joy only judge much argu Lopez, In condemned an argument, approved who first above following: that “I’m con stated the who made the above open season com cerned about the that is ment, boss, then his former District police I ing officers. believe the same County, Bexar Attorney the assistant killed these officers were there were week Dis- attorney represented district who (846). killed America.” Also see eleven Attorney appeal, many pros- trict Martinez v. Texas, attorneys throughout ecuting as 1983) (Condemned: “I App.-4th don’t have Montelongo this Court’s decision of sit here and tell that we have However, done. I must have must And problem robbery with San Antonio. caution of these that before all individuals County, Texas. Headlines on this Bexar much, they they too should not celebrate ”); morning paper, ‘clerk shot head.’ Es forget, Washington as occurred in cobedo v. appellate easily any court can that argument, “If App.1981), concerned which respects even distinguish in several police they think offi you don’t [undecover fours,” all “white horse case” “a case on were scared after shot—after cers] prosecuting attorney some thus cause wrong. shooting, Because you’re then huge up morning to wake some with one Eloy laying there just like Gonzales over hangover, thought he when he morning, Akers’ Funeral Home Roy night sleep the he was went before ,” which was about the Officer Gonzales— happy going pleasant and dreams to have way police officer who was in no death of a case; night. the rest of the and Bennett v. connected *10 reasons, I foregoing For the above and
respectfully dissent. GRIFFIN, Appellant, Arnold
Glen Texas, Appellee.
The STATE of
No. 746-87. Texas, Appeals
Court of Criminal
En Banc.
March Burkholder, III, Houston,
Henry L. appellant. Holmes, Jr., Atty.,
John B. Dist. William Delmore, Coffee, III and Lee Asst. Dist. J. Houston, Huttash, State’s Attys., Robert Austin, Atty., for the State.