Cannon v. State

Henry CANNON, Appellant, Charles Texas, Appellee.

The STATE of

No. 68328. Texas, Appeals

Court Criminal

En Banc.

April 11, 1984. appellant

mediately, since had worked di- supervision. rectly under his Appellant he at another lo- testified was cation, room, Que pool Le at the time of the presented He no other alibi wit- offense.

ness, however, and that he did not testified the names of alibi witnesses. know appellant that Appellant’s counsel testified had indeed informed him there were alibi witnesses, they him that told cooperative try to should he would not be does reflect question them. record made appellant’s counsel was whether any potential of the names of alibi aware witnesses. merits, the trial

After the trial granted appellant’s counsel leave court the remainder of the case withdraw from urge appellant desired to ineffec- because during post-trial tive assistance of counsel Houston, Meyer, appellant. Larry E. for appoint- then proceedings. judge The trial Holmes, Jr., Atty., W. John B. Dist. Larry pursue post attorney Meyer to ed Rains, Kelly, Brian Asst. Palmer and J. Meyer for a filed a motion trial matters. Huttash, Houston, Attys., Dist. Robert trial, contending trial counsel had new Austin, Atty., ineffective, appel- for State. violating therefore right guaranteed by the to counsel lant’s Amendments to and Fourteenth Sixth After several United States Constitution. OPINION mo- hearings, judge the trial overruled appellant. and sentenced tion for new trial CAMPBELL, Judge. filed a Appellant subsequently “Motion for taken from a conviction Appeal is Hearing” Reopen based on affidavit Penal

aggravated robbery. See V.T.C.A. whereabouts an witness whose alibi assessed Code 29.03. Punishment was Sec. prior to trial alleged to be unknown were De- Texas years at ten confinement for prior hearings on the motion to the partment of Corrections. reopen motion was sum- new trial. The error, appellant urges: grounds five court. marily denied of coun- he assistance was denied effective sel; improper the trial court allowed interpret Right to counsel has been argument; impermissibly court right reasonably effec ed to mean evidence; weight of the commented on the parte Ex assistance of counsel. tive Duf and, him denying erred the trial court (Tex.Cr.App.1980). This fy, by a wit- report to a written used access errorless guarantee the accused does not for the State. We affirm. ness him an affords representation, but instead “reasonably likely to render merits, complain- attorney

At trial on assist effective witness, reasonably Cooley, rendering testified that Charles Ellis, 280 F.2d ance.” MacKenna v. by appellant. gunpoint robbed at he was 877, denied, Cir.1960), (5th cert. had worked He stated (1961); parte Ex 7 L.Ed.2d 78 of two S.Ct. period to the offense prior S.W.2d 510 appellant. Gallegos, 511 months, had fired and that he im- recognized appellant he Cooley testified “positive” recogniz- proving The burden of ineffective he not too about appellant. assistance of counsel falls on the ing him. He likewise had no recollection (5th Killian, United States v. 639 F.2d 206 appellant during he saw the time whether Cir.1981), cert. denied 451 U.S. place. the offense took S.Ct. 69 L.Ed.2d 394 Marino v. Unit investigating ap- officer testified An States, (5th Cir.1979). ed 600 F.2d 462 pellant told he had at the him been scene a proven by Such contention must be day robbery question, of on the in the preponderance Marino, of the evidence. looking job. for a The officer testified supra. determining In whether there was Que appellant being at Le never mentioned assistance, ineffective the trial as a whole date the of offense. must be looked at—not isolated incidents of performance. counsel’s Ewing v. question to We decline trial coun 549 S.W.2d 392 (Tex.Cr.App.1977). decisions, taking sel’s tactical such as hearings theAt on the motion for new testify appellant stand had mentioned trial, appellant insisted that trial counsel people him that there were other with only twice, prior met with him to trial both him time of near at the the offense. Pass periods of for short time. Trial counsel more 617 682 hearing at testified that his first visit 1981); (Tex. Blott v. appellant with lasted from one-half hour Cr.App.1980); parte Ewing, Ex hours, one and a half while second visit (Tex.Cr.App.1978). Furthermore, 941 it is “substantially lengthy.” was clear that the two who witnesses testified Appellant asserted that he first knew the evidentiary at hearing could not have witnesses, names three alibi appellant in aided his defense. As alibi trial counsel would listen to him such, call them the failure to at trial on the trial, “cut him He off.” had testified at representation. merits was not a denial of however, did that he not1 know the names Estelle, (5th Mays F.2d 296 Cir. of the alibi witnesses. 1980); (5th Estelle, 588 F.2d 170 Thomas Cir.1979). addition, appellant because Trial evidentiary counsel admitted at did not describe witnesses with reason hearing questioned any that he had not particularity, it able was ineffective witnesses, but appellant, alibi added that assistance for counsel to seek asked, give when could not him wit- investigate out them them. See Pum any identifying nesses’ names nor charac- (5th Cir.1979), Estelle, mel v. 590 F.2d 103 which him locating teristics would in assist 2403, granted cert. S.Ct. them2. He testified that he reviewed 793; F.Supp. L.Ed.2d on remand 498 entire file contents and dis- Beto, (5th Gomez v. F.2d aspects cussed numerous of the defense Cir.1972). appellant We find that received appellant. reasonably representation. effective Two the three “alibi” witnesses testi- first, Que, fied. The an employee at Le Appellant next contends trial court positively said she could not remember see- overruling committed reversible error ing appellant day question. on the im- allegedly his motion for mistrial after any memory if specific Asked she had jury by prosecutor. proper offense, day replied, she about argument complained of follows: whatsoever.” “None all, you “First of I would like to thank your you and the The second “alibi” witness who testified time attention that Que. put manager of Le He this case. hasn’t stated have into It been very long probably “looked familiar” to but that and it have case could supplied throughout by emphasis is 2. Trial counsel testified the identifiable All given opinion writer of this unless otherwise indi- characteristics him were that the witness- pool Que" hall. cated. es were “black customers of Le witness, just presumption appellant’s one have been inno- could cence, commenting weight Cooley Mr. W. who would come on the Charles evidence, ‘It say, to the stand and was this man that the court’s ver- prior gunpoint.’ ‘Guilty’ me And me form listed to ‘Not that robbed at let dict you Cooley thereby suggested appellant’s yes- Guilty’ tell what Mr. asked me said, guilt terday. jury.” He there was no ‘Who’s on trial here?’ Since contemporaneous at objection That’s said.” made what charge prepared, alleged time the timely objected argu- Trial to this counsel nothing presented error waived and prosecutor ment and was sustained. for review» “stay was warned the court to within testimony.” Trial counsel moved for a Appellant next contends that mistrial and overruled. by deny- court committed reversible ing report him to offense of a access an Proper jury argument must fall during state’s witness cross-examination (1) general four sum within one of areas: impeachment and “fail- purposes of (2) evidence; of reasonable de mation the of incorporate copy to a sealed the evidence; (3) from the answer to duction into We note report offense the record.” counsel; (4) argument opposing plea and of copy of the that a sealed the at outset for law enforcement. Todd v. report has included the officer’s been (Tex.Cr.App.1980). Error ex S.W.2d 286 thereby rendering appeal, on this record supported by the when facts not record ists latter contention moot. State, 501 interjected. Berryhill are v. However, (Tex.Cr.App.1973). S.W.2d 86 testimo- An examination of the officer’s unless, light such error is reversible ny reveals trial counsel cross-examined whole, argument the as a the is record concerning aspect re- one of the offense manifestly improper, extreme violative or report.” port, asking him to “refer to the mandatory injects of a statute or new undisputedly the re- The witness authored

facts, accused, the harmful to the into trial. port. 172 Tex.Cr.R. See Gaskin Todd, supra, at 297. (Tex.Cr.App.1961). At cross-examination, however, during no time Clearly, any non-testimonial state request inspect to the re- did trial counsel by Cooley prosecutor to ment made port. and some After this examination improper. was outside the record was testimony, trial counsel stat- brief redirect determination, how We are faced witness,” ed, “Nothing further of this ever, ap was harmful to of whether such excused whereupon the officer was Todd, supra. pellant. until It was not state rested its case. Cooley eye-witness was the trial counsel day next of the trial fingerprints other the State. Since no report. asked see from the tangible was obtained evidence crime, against case the State’s scene appeal, appellant contends On depended largely upon Cooley’s rule set forth in court violated the trial Appellant’s ability to the events. recount request. Gaskin, by refusing supra, theory around his alibi defense centered timely, trial court request been Had Cooley’s account of to discredit tended error in its denial. have been in would Although argument did the incident. However, Gaskin, supra. because by interject- attempt rehabilitate he finished with the counsel stated record, there a lack ing facts outside the officer, until after the officer and waited viewing totality when harm shown rested, he excused and the state had par- of the arguments the facts and the report that time. to the at entitled ties. (Tex.Cr.App.1978), S.W.2d 717 See Adams granted t. next contends Appellant cer 419; 62 L.Ed.2d Mendoza 100 S.Ct. error violat- “committed reversible court felony) the stand of a er convicted been of his activities at give his version appellant’s contention. We overrule robbery. time of is af- judgment the trial court The having joined

firmed. thus the dis- parties case, in the it could have positive issue TEAGUE, J., opinion. in this concurs (after hardly surprising to the State argument) that defense waiving opening CLINTON, Judge, dissenting. to dwell in what proceeded counsel appeal conviction for This is an from a show, in on then zeroed State failed punish- aggravated robbery in which the Cooley’s had: only evidence State years confinement. ment assessed was ten identification. error, appellant ground of In his second of counsel’s The effectiveness prosecutor committed reversi- contends the record before from the cold plain even by arguing a fact ble Therefore, prosecutor the fact that the us. inflammatory and which was in evidence But unfor- surprising either. reacted is not reluctantly agree and would prejudicial. his way found its into tunately, his reaction reverse. jury: to the opening statement against appellant con- case Wilson, Court, Mr. “May please nothing eyewitness sisted of more than jury. Ladies and Gentlemen robbery by of him the victim. identification you I would like to thank First of all Cooley appellant had worked for Since you your time and the attention for year prior to the rob- approximately one very a put into this case. It hasn’t been bery, Cooley’s identification of him was probably could have long case and it average perhaps convincing more than the witness, it could been just one have been might eyewitness testimony. It be there- Cooley who would come Mr. Charles W. thought to understandable that it was fore say, ‘It this man stand and was to the appellant’s fin- unnecessary be to dust for gunpoint.’ me at that robbed gerprints Cooley on the door told knob Cooley you tell what Mr. And let me touched, appel- police place the robber to said, He ‘Who’s yesterday. me asked corporal lineup Cooley’s in identi- lant a Cooley here?’ That’s what Mr. on trial days fication when he was arrested two said.”2 offense, or to retrieve the bullet after the sustained, apparently lodged the wall and the objection between was Appellant’s building Cooley reported “stay had structure instructed to within prosecutor to have perpetrator, testimony,” fired or a motion for mistrial been but in crime scene done other work was overruled. case. (Tex.Cr. State, 598 286 In Todd v. S.W.2d step token, observed that a two App.1980) we

By the same it seems understand- determining analysis coalesced for pursued has the defensive tactic able that argument re vigorously particular jury Cooley cross-examine whether and the First, quires of a conviction. re- reversal law enforcement witnesses State’s two argument case, discrep- determined whether including must be garding the State’s oral legitimate areas of within the testimony1 fact it consist- falls in and the ancies evidence; (1) of the Cooley’s advocacy: summation nothing corroborative of ed of (2) inference from (who deduction or word, had nev- reasonable place the accused then regarding of the denominations Cooley information example, direct that testified on 1. For currency. $360.00 or had taken a the robber total $370.00, including dollar bills two one hundred throughout by supplied emphasis All is fifty dollar bill. and one opinion indi- unless otherwise officer, however, writer of this investigating testified reported cated. had cross-examination give any missing was unable to $330.00 406 evidence; (3) ment, argument to refer to matters outside the answer counsel; and, (4) plea However, opposing case, law in the record. instant Second, argument if enforcement. prosecutor’s argument was invited within, does fall fact “exceeds argument by defense counsel. If an is areas, permissible bounds above invited, and, improper then it such will not constitute reversible therefore, error. does constitute [Ci- whole, unless, light of record as tations omitted.]”3 manifestly im argument extreme Todd, State, supra; Rodriguez also v. See proper, mandatory of a statute or violative (Tex.Cr.App.1975); 520 S.W.2d 778 Hill v. accused, facts, injects new harmful State, (Tex.Cr.App.1975) 518 810 S.W.2d State, proceeding. into v. Kerns J., see, (Odom, concurring); e.g., Mays Thomp (Tex.Cr.App.1977); 91 550 S.W.2d State, (Tex.Cr.App.1978); 260 v. State, 480 624 son S.W.2d v. (Tex.Cr. State, 115 489 Hefley S.W.2d 1972).” Todd, supra, at 297. State, 482 App.1973); Turner v. S.W.2d analysis this instant Applying (Tex.Cr.App.1972); 277 Sennette case, initially agreement agree (Tex.Cr.App.1972); S.W.2d Pierron informing prosecutor’s trial court that the (Tex.Cr.App.1972); by his witness of a statement main (Tex.Cr. Thomas v. S.W.2d “yesterday” made is outside the App.1971). State, (while conceding record. But the Here, argued noth- defense counsel had this) reply to” contends remark “was a during ing other evidence adduced than appellant’s “effort and in “rebuttal of” conducted; lineup finger- no no trial: po poor incomplete to show print or other crime scene evidence work,” citing lice Alejandro v. collected; gun no was recovered.4 sum, the Then, making from that evi- inferences “invited” State contends the remark was dence, merely defense counsel observed us to “see by defense counsel and directs in brought physical had no evidence State State, (Tex.Cr. 582 S.W.2d 129”

Jones offense; connecting appellant the there- App.1979). fore, the entire was based on State’s case argument the er- illustrates The State’s Cooley’s defense coun- identification. But ar- perfectly proper a roneous notion that personal attack on Coo- sel did not make “reply” pros- gument by the can “invite” a Instead, veracity or his ley, his intentions. the ecutor is outside record. Con- which making an suggested Cooley counsel notion, by the trary the case cited to this believing in the robber had honest mistake argument it that an State makes clear appellant, just as made errors he had may justi- be improper which is otherwise concerning denominations of the cur- the only if made legitimate, fied and therefore robbery.5 (Appellant in rency taken the op- argument by reply improper in to an the crossexami- had testified under posing counsel: Cooleyhad failed to nation that once before parties as to both arguments by “The recognize had come into the him when he the not be or could done what could uniform.) shop out his work were outside fingerprint unidentified Thus, contention the State’s Appellant is correct record. legitimate argument by de- argu- wholly in prosecution, above

improper Jones, say that’s the man supra, out Charles Cannon and at 135. 3. me, did as a I don’t think he that robbed lie. 810, 812, n. Compare Hill v. 518 S.W.2d honestly that Charles that. think he believes him, but he the man that robbed Cannon is Rodrigues wrong. he he like told Officer Just jury: told 5. Counsel of mon- couldn’t recall denominations "Well, ly- Cooley is that Mr. this case—not ey.” ing, because I don’t think intentionally point in and come here would justified response prosecutor’s fense counsel informing outside the jury that record, complainant him, is untenable. had asked “Who’s on trial injected here?” inadmissible information Having argument concluded the com- proceeding into the which had the effect of plained error, I of constituted now turn to a bolstering credibility very of the wit- determination of the step second our credibility question. ness whose was in analysis: requires whether error rever- Moreover, this new information inferential- sal in this case. ly indicted utilizing defense counsel for im- question Analysis requires of this consid- proper appellant, tactics in the defense of only eration whole, record as a when, fact, technique his beyond adduced, including the facts the issues in- reproach. finally, interjection And volved, the nature of the offense and the complainant’s query oper- was calculated to verdict,6 but also the possibility that the ate on the jury by castigat- emotions of the conviction passion resulted from preju- or any juror an inclination might harbour engendered by dice argument,7 or from reasonably believe doubt jury’s consideration of matters other accuracy of his identification as the duly processed than evidence according to by Cooley. robber the witness Clearly, law.8 the harm or lack thereof years ago More than ten the Court was any attending given argument can never be constrained note “growing tendency by determined considering argument by prosecutors go outside the record in a vacuum. It follows patently egre- that a jury argument then, appeal, submit gious argument might be rendered harm- that such was not error....” Stearn v. by less other attributes of the such case as 487 S.W.2d overwhelming evidence or the failure purpose jury argument argument See, to touch a material issue. reiterated, quoting from Pena v. e.g., Hill, supra, (Odom, J., concurring) (1939), Tex.Cr.R. J., (Roberts, concurring). Conversely, the as follows: very argument appears which innocuous in object principle “The purpose of an might one case constitute reversible the jury, as we understand sum, in another. this determination can it, is to aid properly and assist them in be made Mayberry case case. analyzing arriving] evidence at a 80 (Tex.Cr.App.1976). just and reasonable conclusion based on Standing alone, improper argument alone, evidence and not on fact complained of here appear does not to be admitted evidence. Nor should extreme, particularly and no doubt would resort be in argument to arouse repeated require if reversal in some passion prejudice jury by of However, other cases. ’as chronicled matters not properly them.” before above, real issue this case was 487 S.W.2d at 736. jury beyond whether the believed a reason- parties agreed able that a man all prosecutor doubt If the is so of convinced upstanding, identifying was correct in credibility eyewitness of his sole that he Thus, the accused as his assailant. hinge chooses to a conviction on it alone State, State, 6. Fowler v. (Tex.Cr.App. (Tex.Cr. 500 S.W.2d 643 8. Turrentine v. 536 S.W.2d 219 State, 1973); Douglas, v. dissenting); State, Gatlin J., App.1976); (Tex. Renn v. 495 S.W.2d 922 (1929); 113 20 247, Tex.Cr.R. S.W.2d 431 see State, Cr.App.1973); v. Cazares S.W.2d 488 110 Donnelly DeChristoforo, v. 637, also 94 State, (Tex.Cr.App.1972); Pennington v. Tex. (1974); S.Ct. 40 L.Ed.2d 431 and Houston (1961); Porter v. Cr.R. 345 S.W.2d 527 Estelle, (5 v. 569 F.2d 372 CA State, (1950); 154 Tex.Cr.R. 252, 226 S.W.2d 435 State, v. Palmer 148 Tex.Cr.R. 39, 184 S.W.2d v. 7. Blansett 556 S.W.2d 322 (1945). Mayberry 1977); (Tex.Cr. 532 S.W.2d 80 App.1976) (Opinion on State's Motion Re hearing); Hodge v. (Tex. Cr.App.1973). necessity bringing of without the forth connecting the

other evidence accused minimum, offense, then, at a fairness

requires the State must trust the question guilt of on that

decide basis.

Interjection of facts inadmissible which jury’s

tend divert the attention from the properly joined

issues should not be tolerated. earn, supra; Pena, supra.

St light of the evidence and the issues cause, prejudi-

involved in the of this prosecutor’s effect of the

cial comment

could have been from the removed consciousness;9

jury’s accordingly, the trial in overruling appellant’s

court erred motion

for mistrial. majority acknowledges accuracy analysis explicated

of have but then to apply

fails it faithfully.

I dissent. Paso, Segall, appellant. Scott E. El MILLER, J., joins. Austin, Huttash, Atty., Robert for the State.

ON APPELLANT’S PETITION FOR REVIEW DISCRETIONARY ONION, Judge. Presiding FAVELA, Appellant, Juan O. Municipal Appellant was convicted City El Paso for of of violation Court of as- municipal ordinance and was traffic Texas, Appellee. STATE The County Court sessed a fine. $200.00 No. 620-83. appeal based at Law No. dismissed Texas, appeal Court of the notice Appeals finding Criminal El premature. Appeals En The Court Banc. county upheld decision Paso

April court, appeal agreeing Favela perfected. properly See (Tex.App.—El Paso granted appellant’s petition We the cor- discretionary to determine review be- the courts of the decisions rectness low. vio- alleged complaint § 20-140, Code

lated Ch. complaint alleges

City El Paso. Boyde Cr.App.1975);

9. See Cook v. 537 S.W.2d 258 1976); (Tex. Edmiston

Case Details

Case Name: Cannon v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 11, 1984

Citation: 668 S.W.2d 401

Docket Number: 68328

Court Abbreviation: Tex. Crim. App.