*1 36.19, V.A.C.C.P., provides, Article requirements where Articles
part, that 36.16, V.A.C.C.P.,
36.14, relating 36.15 charge disregarded
to the court’s been judgment
“. . . shall not re- from the appearing
versed unless calculated injure rights
record was
defendant, or it appears unless from the defendant has not a fair
record trial. . .” impartial statute, any if there were
Under
error, jurors would be it harmless. The they beyond had to believe
knew doubt was in-
reasonable or knew that
formed Evans was they before could
officer convict. is shown. The judgment
No error
be affirmed. J.,
ODOM, joins in this dissent.
Eugene GIVENS, Appellant, Lorenza Texas, Appellee.
The STATE
No. 53468. Appeals of Criminal Texas.
June 1977. 14, 1977.
Rehearing Sept. Denied
In each of grounds six of error the complains appellant prosecutor’s of the ar The first is that gument. prosecutor, the at guilt-innocence trial, phase of the the ar gued:
“There’s a lot of senseless and tragic
unnecessary killing going
on in our
community,
State,
and our
and I—”
defense
objection
counsel’s
that the
was
argument
outside of the record was
and the court instructed the
sustained
jury
to consider this
Defense
testimony
had elicited
that the ap
counsel
lived in a
pellant
neighborhood where there
“jungle”
was much violence—a
—and
people
the
most of
who lived in that neigh
guns.
argument
carried
the
borhood
If
proper plea
enforcement,
not a
for law
see
State,
(Tex.Cr.
494
Roberts
S.W.2d 857
State,
Knox v.
App.1973);
“If he cannot be rehabilitated it will
him off
keep
long
the streets for as
as
OPINION
possible.”
DALLY, Commissioner.
appellant urges
prosecutor
the
im
appeal
a conviction for
is an
from
This
appellant
be
plied
“turned
manslaughter;
voluntary
offense
rehabilitated,
he
when was
which he
loose”
imprisonment
years.
16
for
punishment
was similar to an
condemned
says
grounds
incorrect
as an
statement of law Hernan
The review
require
statement
366
576 (Tex.Cr.App.
a full
dez v.
does
S.W.2d
error
appel-
19633).
appellant
urges
evidence shows that the
also
facts.
city
killed man on a Dallas
was an
al
shot and
lant
operation
parole
lusion to
law.
street.
Compare
Although
Marshburn v.
the robbery example
by
used
(Tex.Cr.App.1975).
agree
We do not
prosecutor may
poor choice,
have been a
appellant.
The inference
be
with
was attempting to explain to
prosecutor’s argument
from the
drawn
the difference between real and
placed
where
apparent danger. We do not construe the
be rehabilitated and if he
he could
were
made
by the prosecutor to be a
*3
rehabilitated, society
protected by
should be
misstatement of the law contrary to the
as
keeping
appellant
long
off
streets
charge
court’s
or a limitation on the appel-
argu
The
possible.
as
not
right
lant’s
self-defense.
See Lincoln
gain
ing
appellant
early
an
State,
part prosecutor’s was con if but possible, you it’s before can use charge, to the court’s it a trary was mis deadly against force else, someone law applicable case, statement of the to this force, just physical but you before can jury’s and it limited the consideration force, deadly you use have to have real or appellant’s right por of self-defense. The apparent deadly force against used you, tion of the made at guilt-in you person If a just is coming at see. phase nocence of the trial of which com you his fists up with doubled that’s hard- is plaint made follows: ly good enough you to feel are to about “Now, Mr. Poirot has talked to some killed, be is it?” this apparent danger charge extent about in here. He went over you it with The court had instructed the jury on the percent of ninety about the page and justifying law use of deadly in force two-thirds that constitute this charge. apparent self-defense. It is that the prose charge basically What this handles the attempting cutor was to explain jury to the situation where a man up you— comes to charge on the use of deadly It force. is hypothetical. a gun Sticks into was anot statement of contrary law to the your says, ‘give chest and your me all charge. court’s See Lincoln supra; money, going you’— I’m to kill cf. Hill v. (Tex. S.W.2d 810-813 Your Hon- “[DEFENSE COUNSEL]: Cr.App.1975). or, going object I’m to very strenuously. remaining conten is not the charge. That situation tion to relates made at the very misleading. That’s guilt-innocence phase of the trial. The Judge, he hasn’t “[PROSECUTOR]: prosecutor argued: let my even me finish statement. “Now, justice ain criminal case can “THE a hypothetical COURT: It’s accomplished in a ways number of when question. Overruled. you to stop all, think about it. First of Note our “[DEFENSE COUNSEL]: department the police may just exception. take a They refuse to case. don’t have to And in some man- “[PROSECUTOR]: They take it. don’t have to file Ait. you manage get ner to on the drop Attorney’s District office does not have you individual and kill him lo and and accept to a case. Justice can be in done person’s gun behold that wasn’t loaded. that manner. A Dallas danger. County it wasn’t real Grand So He couldn’t Jury can return a no you even he bill have killed if wanted to. indictment. justice it to That can do to appeared you But to be a dan- my- real case. And ger didn’t know if it was self and Mr. Scott as the Assistant Dis- or It was apparent. Attorneys loaded not. You see trict can dismiss a case. That distinction?” it justice can do also. Judge, I’m jury’s decisions are cumulative evidence of COUNSEL]: “[DEFENSE implication of that object to the going guilt law, was a misstatement of the im- implying other factors That’s prejudicial, proper preserved and re- highly prej- and it’s this record outside error. versible and it’s certain- Defendant to this udicial objected. Defense counsel When trial object I to it. prejudicial ly said, give you court “I’ll exception,” an give you excep- I’ll “THE COURT: ruled, effect, it what was: that’s all it. tion on getting. you’re judge When a trial says, you, Thank COUNSEL]: “[DEFENSE your “you may exception,” “per he Honor.” Your argument] go to the mit[s] [the although the argued that unhampered by any caution not to consider nega- was couched in Thus, it.” the trial court “. .in ef impact was: its real statements tive his place[s] upon argu fect sanction such Appellant was believed “(1) *4 Traders and ment.” General Ins. Co. v. they accepted the guilty because White, 702, (Tex.Civ.App.— 320 S.W.2d 705 filing; for case e.). Amarillo writ ref’d n. r. Attorney’s office be- “(2) The District State, (Tex. v. 500 643 In Fowler S.W.2d guilty because was Appellant lieved 1973), we reversed because of the Cr.App. filing; case for the they accepted following improper argument: Appellant believed Jury “(3) The Grand certainly going prosecute not “I am returned they guilty because was in my I don’t feel own heart is a man that bill; and true guilty.” Appellant believed “(4) prosecutors Both had sustained We stated the court “[i]f not they did because guilty to be objection and instructed the not to to dismiss.” a motion file argument, might this not consider after the objection until was no There (Citations).” Id., in resulted reversal. have type argu- pursued the same at 644. court did When the some time. for ment State, (Tex. v. Harris 475 922 In S.W.2d objection or overrule the sustain either was 1972), following argument Cr.App. coun- exception,” give you “I’ll said: but to: objected court’s of the get a clarification did not sel request was no ruling. There “Now, again, he said that State disregard this jury to instruct court he went power, lot of wields a argument was If this process grand jury of the through the protected ¡east have an instruction indictment; people at nine in the rights. there was evidence felt past have conviction, they re- warranting a system of that in our known It is well (Emphasis included). of discre a true bill.” amount turned a certain justice criminal given their duties is exercise of in the tion objection was sustained and an Since with law agencies concerned the various disregard granted, this Court instruction The enforcement. present. error reversible was held that recognizing these facts. statement was a However, we stated that italicized “[t]he State, (Tex. 421 910 v. S.W.2d Jimenez See was prosecutor’s argument of the portion Cr.App.1968). law; have it should not misstatement is affirmed. judgment made, The and under some circumstances been Id., error.” have been reversible might well by the Court. approved Opinion at 923. ROBERTS, dissenting. Judge, (Tex.Cr. 512 v. In Hall was following argument 1973), the App. that his attorney’s argument district to: decisions, grand objected and the decisions, police “ * * * trying you I am to detail for judgment should be reversed and the is, it’s, your law enforcement why what cause remanded. important. so
part, their robbers; apprehending these work PHILLIPS, J., joins in this dissent. jurors cases, hear the grand they you the cases. As heard the indict grand read in this
indictment case. Texas, saying
jurors State of wrong and you
man did saw the details indictment.” improper.
We stated was disregard no instruction to
But since ruling or a
sought obtained on the initial objection, willing to label “[w]e [were] COUNTY, Appellant, HARRIS Id., error however.” at 514. it reversible (Tex.Cr. In Jones S.W.2d 755 1975, Opinion on App. Appellant’s Motion to Philip EMMITE, Appellee. L. Appeal), the following Reinstate No. 16879. complained of: you every “. .1 tell each and one Appeals Texas, of Civil you are the pay citizens who me to (1st Dist.). Houston *5 job. you this, I will tell there 26, May 1977. you, not one Jury one of on that pay enough money me that can or can Rehearing 21, Denied July 1977. police department pay enough money to convict try an man innocent about, is what we are that here and that he is insinuating.
is what You don’t do
that, jobmy is not that important to me. go over there I can and defend them and * * money more
make —* me make
“So let this clear to each and you,
every one it is important, you enough me pay money
don’t to come here
and convict innocent man.” language
This was held but not because the majority
reversible found was invited See,
by defense counsel. Elizondo 1976). (Tex.Cr.App. 454-455 bar, case at was pre-
In the
served. received an unfavor- ruling objection. on his
able the evidence shows the de-
When another, prosecutors shot and killed
fendant risk reversal by of a conviction
arguing process due of law is due guilt. practice condone
process we lead, case, in a closer innocent
may to an being deprived liberty of his
person indicted.
he has been