Cook v. State, 702 S.W.2d 597

Cook v. State

702 S.W.2d 597

Tex. Crim. App.

1984

Check Treatment

*1 signеd judge not mention much discuss the draft trial by less mat- the and followed subsequent ruling the by making ter of of the trial the con an order latter “final” court motion for new trial. judgment summary stitute a that the State In both a motion and motion ap- amended have and from the the principal recover pellant attаcked of grant summary the specified money amount of in each. There in judgment prayed each that it be set fore, summary judgment fails rule part and for a For aside new trial. its by against appellant, the claim the State presented deny State motion to written surety. partial As such it is but a stating, alia, mоtion for new trial inter summary judgment finally which does not granting that court “did in not err dispose controversy of in the whole matter Summary Judg- Plaintiff’s Motion for parties. as to all Bonding Company Joe’s ment.” There were short two consolidated 145 (Tex.Cr.App.1972); hearings, beginning the latter Smith v. calling by judge style each case and num- App.1972). ber, remarking then motions for a new I would reverse remand each were observing trial filed Judgment Amended Nunc Pro Be- Tunc. principal large. was still at The obser- cause majority refuses even to consider being by counsel, vation confirmed matter, respectfully I dissent. then court ruled: “In each one of these for a motions new trial will be overruled by give

the court. Do wish notice of

appeal on those Whereupon cases?” notice appeal given

of open in court. On the day, the signed

same court a written draft

order which it found that the motion for trial

new should be Judg- denied “the ment heretofore entered herein should be COOK, Aubrey Appellant, final,” made portion reading the decretal as follows: Texas,

“It is Appellee. therefore ORDERED The STATE of Judgment entered in this cause on the No. 722-82. dаy December, 1979, 6th be and it is Texas, Appeals Court of Criminal hereby Surety final and that Defendant’s En ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Banc. Motion New Trial is here- [Amended] by denied.” 20, 1984. June overruling That the motion for new trial 20, Rehearing Denied Nov. 1985. 6, making judg- December ment final were “the deliberate result of

judicial reasoning determination,” Orr,

Reavley & Trial Power Court’s Judgments, Baylor 191, its

Amend L.R.

195, simply gainsaid.10 cannot be Nor error, attributed to clerical this

instance. matter, then,

I As would construe the coupled

oral statements with the written “During (Tex.1978). pendency as power motion for new was characterized That Inc., thirty day period following Metals, trial and the overruling, its "plenary” Schley v. Structural vacate, power 1979, the court has (Tex.Civ.App. Waco, — correct, modify, judgment or reform or to 329b, n.r.e.). writ current Rule T.R. ref'd See trial,” grant Leasing a new Transamerican Com C.P. Bears, Inc., pany v. Three *2 McLean, Houston, appellant.

Ken Holmes, Jr., Atty. B. Dist. John Brough, Atty., Asst. Dist. Hous- James C. ton, Huttash, Robert ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Atty., State’s Riedel, Cathleen R. Asst. State’s Atty., Aus- tin, for the State. PETITION ON APPELLANT’S

OPINION REVIEW FOR DISCRETIONARY McCORMICK,Judge. granted appellant’s petition for dis-

cretionary review to consider whether prosecutor commented on testify during his at guilt-innocence phase of the trial. prosecutor made the record shows that following argument: I During voir dire McSPADDEN: “MR. that I would find you at that time told is the same time out what the defense out, A., I told first of you find several defenses we all there are A., mistaken usually heard. would be They do that be- identity. couldn’t B., him. everybody cause identified else, be- using the alibi. Someone got cause, else. I’ve 7 was somewhere alibi, playing poker I was my because Again, guys.’ It wasn’t that. involved. all of the evidence because no C., There was affirmative consent. happened shоwn as to what consent Only innuendoes during the attack. may have suppositions about what added) (Emphasis happened.” Appeals, The Court argu- in the no error found that there was witnesses other normally ment because usually testify to these than the defendant reasoning of the Court defenses. holding directly conflicts with Appeals Cherry this Court Cherry, S.W.2d 549 argued as follows: prosecutor a available to defenses are “Now what one, like Number in a case this? person alibi, else, I was somewhere I was with judgments Appeals of the Court of added). (Emphasis someone else.” and the trial court are reversed and the Cherry v. case is remanded for new trial. at 550. State, in Cherry This Court found use “I” of the word OPINION ON STATE’S MOTION *3 any theory contradicted that he refer- FOR REHEARING ring to witnesses other than the defendant. CLINTON, Judge. to order constitute a violation granted the State’s motion for re- 38.08, Y.A.C.C.P., language Article ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of hearing original to consider finding our intended, manifestly must be either or of complained prosecutorial argu- that the of a the jury such character that would natu ment was error and if so whether it was

rally necessarily and take it to a com be harmless. on testify. ment the defendant’s failure to State, Banks v. 643 S.W.2d 129 State, Cherry v. The State contends that State, App.1982); Angel v. 424 507 S.W.2d 549 followed State, (Tex.Cr.App.1982); Johnson v. original opinion, distinguishable in the is v. (Tex.Cr.App.1981); S.W.2d prosecutor’s argument because the in the Griffin State, 688 (Tex.Cr.App.1977). S.W.2d appellant’s instant case was directed at fail- challenged The comment viewed must be testify ure to as to alibi. The State con- from standpoint jury of the and improper this argument tends that was not language must more implied than an or alibi was issue because not an in the case. indirect allusion to the defendant’s silence. in Cherry, a But neither was it an issue Angel State, v. Bird v. supra; which put case in the defendant had on no (Tex.Cr.App.1975); Anderson witnesses. The comment was nonetheless a on comment failure to testify, improper. precept impor This latter is most comment, Nor was the as the State in tant the case at bar. The Court of it, have to a hypothetical would confined Appeals disposed ground this by of of error prosecutor alibi defense. The continued: noting that it is usual for other someone “c., consent. There was no affirmative urge than the to defendant these defenses. happened shown during consent as to what Unfortunately, average we believe that the Only and supposi- attack. innuendoes jury is not usually aware of what is in done happened.” tions what have about Thus, criminal cases. we must examine argument This echoed earlier an prosecutor’s argument strictly from prosecutor: by made standpoint person of a lay serving a really point comes tо a “It down if jury. When the “I” is word used in refer complaining believe testi- witness’s] something might ence to the defendant mony, only because she is the actual fact to, not, illogical have testified but it is attack, to the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍witness itself.” jury think is not of to that the reminded Appellant objected these to both testify. defendant’s failure to is a This impermissible as on his comments failure example classic of what Article 38.08 testify. objections to Both were over- trying prevent. to We follow the reason ruled.1 ing Cherry and find that prosecutor’s argument imper issue in was an While alibi was not an surely missible comment on the fail was. A recitation of consent facts point. ure is in order at this however, original opinion disposed properly preserved, presented Our were the case appeals, the basis of the unnecessary it "alibi” comment and so found the court court’s and addressed opinion. propriety purpоses ear- of the to address For harm anal- comments, prosecutorial ysis, lier remark. Both we consider both comments. then, Clearly, only after work the issue at trial was Wednesday afternoon roommate, Appellant’s own Ms. consent or lack thereof. complainant with her went Pacе, appellant was restaurant/bar in witness testified that Friday’s, a apartment. evidence showed that were to meet But the Houston. The two women go only complainant appellant were people a Bible two other there alleg- the attack awry, necessitat- the bedroоm at the time meeting. plans went place. phone edly to locate took ing trips several trip to the Bible companions. their remark referred to lack By that meeting finally abandoned. concerning the attack itself or evidence Pace had struck complainant time the during “affirmative consent ... any sitting near up conversation with a man only That evidence could have attack.” bar, Finney. Fin- telephone at the Jake Only he come from himself. as an unmarried ney introduced himself whether were witnesses to *4 (He Antonio. later rancher from San and there was there was an attack whether nonrancher to be a married turned out testified, ap- complainant had consent. California.) After an hour or two of from pellant had not. go Finney Pace and decided conversation prosecutor’s remark constitutes A club, dancing the San Antonio at another impermissible an comment on a complainant into They cajoled Rose. testify if the remark alludes to failure to them, accompanying and all three went missing only sup could evidence that Antonio Rose. Finney’s car to San State, plied by Angel that defendant. v. is where the evidence becоmes dis- This (Tex.Cr.App.1982). “If the 627 424 S.W.2d Pace, complainant, Finney and puted. The jury’s complained of called the at remark time, closing about stayed at the bar until only to the absence of evidence that tention complainant testified that 1:45 a.m. The sup appellant could testimony from the Pace and when the club closed she followed must be reversed.” ply, the conviction lot, she met Finney parking into the where State, 649 v. Johnson appellant appellant first time when for the following this test the App.1981). Under joba approached Finney to ask about improper comments: have been held to be appellant, witnesses for his ranch. Two her,” referring to a “No one contradicts including contrary, to the Finney, testified testimony concerning rape complainant’s complainant dancing that had seen only complainant, the defend at which talking appellant inside the club and with ant, complainant’s year two old and the closing time. an hour or two before v. 552 present. child were Pollard testimony According complainant’s (Tex.Cr.App.1977); "... not S.W.2d appellant to the women’s Finney invited way this defendant or any one word job. Fin- apartment possible discuss the credibility challenge the attorneys these appellant ney that he did not invite testified State, 531 complainant].” Dubose v. assumed the com- apartment, to the (Tex.Cr.App.1976). S.W.2d 330 parties All so herself. plainant had done Furthermore, original opinion as our complainant appel- rode with agreе that the out, use properly pointed arriving apartment, her in his car to lant ap- inescapably a reference to “I” Finney and the minutes ahead of several hold We pellant and his in that interval roommate Pace. It was argument, impermissible that this alleged occurred. that sexual attack objection overruling at Finney Pace and arrived When trial error. complain- apartment Pace walked into the wheth be determined complainant It remains to to find the ant’s bedroom begin with later er error was harmless. bed. A minute appellant naked only not out, such error violаtes crying appel- that the fact that complainant ran V.A.C.C.P., 38.08, pro- but also Article her. lant had hit her and hurt against closing guest selfincrimination of both tections time because another had the Texas and Federal constitutions. Bird complainant’s appellant invited to the v. apartment. Two dеfense witnesses testi- Nevertheless, such an error be held complainant contrary fied to the that had test, Chapman harmless. The taken from appellant danced and with inside the talked 18, California, 386 U.S. 87 S.Ct. police report, club. The taken from com- (1967), L.Ed.2d is that it must be deter- witnesses, plainant suppоrted other beyond mined a reasonable doubt that the theory by saying appellant defensive error did not contribute to the verdict. 11:45 had met about Bird, at not p.m., parking at 2:00 a.m. in the lot. Finney appellant testified he did not invite Cannon apartment; to the he com- assumed the improper prоsecutori- an plainant had done so. Pace testified that argument al was held to be harmless way apartment Finney on their to the told viewing totality “when of the facts and appellant, her he did not want to talk to parties.” The State casting further doubt complainant’s on the directs our attеntion to the dissent Finney contention that it had been who had proposition patently that “a apartment. invited Testi- egregious argument might be rendered Pace, mony complainant’s also showed that harmless other attributes of the case witness, roommate and a State’s lied to the overwhеlming such as evidence or the fail- police pres- about the circumstances of her ure of the to touch a material *5 night. ence at the San Antonio Rose that (Clinton, J., 407.) issue.” dissenting, at found, As already we have comment on the presented Both the evidence the defense defendant’s failure testify touched the testimony and the it chose to contest show only material issue in this case.2 trying prove defense was that the negated possi- State had not the reasonable The issue of harm must be determined context, bility pros- of consent. In this from the facts of each individual ecutor’s comment on according resolved failure to probable to “the effect argument] testify alleged as to the facts of the has on attack jur the minds of Mayberry v. ors.” touched on the basic defensive issue of the Mayberry trial. The argu In comment cannot be said to have ment was held to be been harmless because the harmless. guilt evidence of the was over perhaps could have been whelming. finding harmlessness rendered harmless an instruction to the Garrett v. (Tex. Davis v. jury disregard them. In Cr.App.1982) was also based on the fact that the evidence of guilt the defendant’s finding Court noted such error harmlеss “overwhelming, beyond if not all judge’s the trial instruction to dis- doubt.” unusually regard such remarks had been strong: “... admonishment was the instant case the evidence on unique emphasized jury

the issue of consent was far that it from over statement,” whelming. impropriety attempted State’s evidence absolute importance to show that the had had no and thus “dramatized contact with his company disregarding until the statement.” 645 S.W.2d her in parking was forced on lot at at 819. improper testify perva- In Cannon comment referred to is more a comment on failure to likely not in evidence. It not facts a comment on сonfined to the sive. Its effect ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is not to be particular the defendant's We note that a which it is di- material issue toward testify likely Pointing comment on failure to will be not less rected. out that the defendant has inevitably harmless. Such a be found comment is a will call the testified as to one issue rights, jury’s violation оf a defendant’s constitutional the defendant attention to the fact that Further, going where outside the record is not. has not testified at all. given. Ap-

Here no such instruction overruled, un-

pellant’s objections were impres- leaving jury the

doubtedly properly consider could

sion Cherry, supra.

prosecutor’s remarks. find the of this record we the basis improper were both

prosecutorial remarks mo- Accordingly, the State’s harmful. rehearing is overruled.

tion FANN, Appellant,

Frank Edward Texas, Appellee.

The STATE of

No. 65784. Texas, Appeals of

Court of Criminal

En Banc.

July 1985. Rehearing Jan. Gray, Dallas, appellant.

Edward Wade, Atty. Henry Dist. and John D. Nation, LeNoir, Hugh Lucas Martin Dallas, Huttash, Attys., Asst. Dist. Robert Austin, Atty., for the State. State’s