Hughes v. State

reformed, judgment in As we render accor- judgment.2

dance the trial court HUGHES, III, Appellant, Preston Texas, Appellee. STATE

No. 70901. Texas, Appeals Court of Criminal En Banc. Dec. 1992. Opinion Granting Rehearing 1993. June Rehearing Denied Nov. 1993. Certiorari Denied June See S.Ct. 2184. Mackey Bradley appropriate appel- will all trial is not before this Court. Motors obtain new 182(a). late costs. See complaint by separate applica- Tex.R.App.P. failed to raise this Archuleta v. Int'l Ins. tion for writ of error. See Co., appeals correctly 2. Whether the court of affirmed (Tex.1984). grant Mackey's the trial court’s refusal to motion Finkel, Houston, Joseph appellant. J. Holmes, Jr., Atty., Linda John B. Dist. Noll, Dist. A. West and Charles A. Asst. Houston, Huttash, Attys., Robert State’s Austin, Atty., for State.

OPINION CAMPBELL, Judge. capital

Appellant was convicted of murder. 19.03(a)(6). Upon § Penal V.T.C.A. Code jury’s the two issues affirmative answers to punishment, the trial sen submitted at

appellant Art. 37.- tenced to death. See

071(b)(1), (b)(2), (e), Appel V.A.C.C.P.1 points error in this lant raises twelve appeal. will reverse direct We disposition of our conviction on basis error, point the one his fourth and address challenging sufficiency of of error punishment on the second issue. the evidence (Tex.Crim.App.1987), 617, 629 Lane v. — denied, U.S. -, t. cer 118 L.Ed.2d 568. S.Ct. error, eighth point appellant con at trial is insufficient tends the evidence that he would commit criminal acts establish continuing of violence that would constitute society. reviewing the sufficien threat to cy support an affirmative of the evidence to issue, punishment to the second answer the same standard of review Court utilizes sufficiency judging of the evidence to conviction, the evi support a viz: we view light in the most favorable dence whether a rational trier verdict to determine ele of fact could have found the essential beyond punishment issue a rea ments of the sonable doubt. Black denied, (Tex.Crim.App.1991), cert. — Collins, -, nom., sub. Black v. U.S. (1992). 119 L.Ed.2d 601 S.Ct. issues, deliberating on the When all to consider evidence is entitled (Vernon 1991). trial, Supp. 37.071 Art. 37.071 has been Art. 1. Since Legislature. V.A.C.C.P. amended the 72nd phases appellant September admitted at both of trial. there arrested at 4:30 a.m. on We proceed arresting appellant, police in- fore review that evidence. 27. After rights him his Miranda2 and con- formed The record reflects that officers of the interrogate tinued to him. Over the course Department Houston Police discovered two hours, kill- of several confessed to persons still alive—in a vacant field —one M_T_ S_C_and ing County September Harris 1988. The S_C_and victims, M_T_, had trial, During punishment phase multiple both sustained stab wounds. documentary the State offered jugular aorta and vein of each victim had showing evidence that when com- S_ C_ been severed. mitted the murders M_ T_, already serving he was two police Houston Hamilton officer Donald ten-year probated pursuant terms to a de- S_C_at spoke with the scene before adjudication judgment. Appellant ferred had S_ C_informed she died. Hamilton placed adjudication been on deferred that someone named “Preston” had tried to committing aggravated sexual assault and sexually assault her and then had stabbed aggravated thirteen-year- assault3 information, police her. Based on this T_H_T_H,__ female, old tes- apartment officers to an complex went locat- appellant raped tified that had her in 1985 approximately yards ed from the vacant girl- and had forced her to swear be his police requested field. The and received a H_testified Additionally, friend. T apartment list of manager tenants from the appellant told her not to contact the complex. Appellant only per- of the was the police kept because he her home under sur- son named Preston on the list. veillance. Around a.m. September 2:30 H_did threat, Despite this T. con- police appellant’s went to apartment. Appel- police appellant tact charged and was apartment lant admitted the officers into his aggravated with sexual assault. trial As the questions, and answered some none of which S_C_ n approaching appellant date was in late investigation mentioned the M_ T_’s T_H_, confronted told her should she and Appellant deaths. him, testify against gun not and fired a at agreed accompany po- the officers to the T_ H_ police her. informed the questioning. lice station for further At the incident, appellant charged was with station, police interrogation appellant T_H_ n aggravated Beyond assault. police continued while the conducted a com- testimony, the State also introduced docu- puter inquiry to appellant determine whether appellant guilty ments wherein was found prior had a criminal inquiry record. The the offenses and received two sentences of appellant revealed that had been involved adjudication years. deferred for ten “some sexual assault cases.” During interrogation, appellant ap- admit- The record also contains evidence that acquainted pellant ted he had become had been accused of sexual assault S_ C_ through appellant a mutual friend. the state of New York and that had (1) upon proximity appellant’s Based failed to attend a number of his scheduled offense, (2) officer, meetings probation residence to the scene of the with his Mikal computer appellant’s Klumpp. Klumpp information about in- testified that he tried to (3) cases, past volvement with sexual assault accommodate schedule remain- S_C_that ing probation the statement from “Pres- office later than he efforts, sexually normally Despite Klumpp’s ton” had attacked and tried as- would. (4) her, appel- appellant sault the admission from still missed numerous scheduled S_ C_, police appointments.

lant that he knew Arizona, 2. Miranda v. 384 U.S. 86 S.Ct. failure to on the court’s admonish (1966). 16 L.Ed.2d 694 applicable range punishment. Hughes v. 1992). (Tex.Crim.App. S.W.2d 137 aggravated 3. The assault conviction has since been vacated this Court on the basis T_ M_T_In to silence an effort presented punishment evidence Appellant H_, and fired a appellant threatened her testimony regarding his char- form of Moreover, appellant’s attack gun at her. of the witnesses stated acter. While few T_ M_ S_ C_ legal appellant’s past they aware of were by the calculating, as evidenced testified cold and six of friends problems, jugular severing person’s aorta and good-natured person and of each that he was a Additionally, who identified Appellant’s mother testi- the victim prone violence. vein. “Preston,” fifteen-year- was a She also testified her attacker as fied to the same effect. age

that, pose a the same as opinion, appellant girl, approximately did not old in her T_H_Demonstrably, appel- violence. victim threat of future sexually assaulting history of lant has a question required The second teenage girls. young would, more prove the State any psy introduce the State did not While not, criminal acts likely than commit violent testimony on issue of future dan chiatric continuing constitute a in the future so as to jury may return an affirmative gerousness, a society, he incarcerat threat to whether Cockrum answer without such evidence. See ed or not. Smith v. (Tex.Crim.App. v. weighing (Tex.Crim.App.1989). 1988); 617 S.W.2d 925 Crawford evidence, consider a number of could record, we (Tex.Crim.App.1980). On this factors, prior including the existence of a jury could have that a rational conclude record, severity any prior criminal appel beyond doubt that found a reasonable crimes, of the de and the calculated nature society continuing threat to lant constituted a State, 788 conduct. Stoker v. fendant’s eight. point of error and overrule Moreover, (Tex.Crim.App.1989). may an error, return affirmative answer appellant as- In his fourth solely punishment issue based the second its discretion serts the trial court abused circumstances of the case upon the facts and prospec- denying challenge for cause to State, 819 being prosecuted. Farris Appellant argues juror Faulkner. tive (Tex.Crim.App.1990); Mun challengeable for properly Faulkner was (Tex.Crim. 35.16(c)(2), iz v. pursuant to Art. cause App.1978). V.A.C.C.P., provides: which lant answer because sufficient to Appellant “had a bad argues support no one testified reputation that the evidence jury’s peacefulness, that affirmative appel- in- the defense sons: (c) A challenge for cause n n any n may ^[*] following be made n rea- n on any evidence offered psychiatric nor was (2) prejudice or That he has a bias Appel- dangerousness.” of future issue applicable to the of the laws charged argues that the facts of the lant also is entitled- the defense case enough by brutal them- offense alone are not to some rely, as a defense either “justify death sentence.” selves for which the defen- phase of the offense argues only that the facts of mitiga- as a being prosecuted or dant is are sufficient to warrant instant offense or the of the tion thereof penalty, also that the remainder death but therefor. adequately demonstrates the the evidence challenge on Faulkner’s Appellant bases this commit crimi- would likelihood probability understanding the term as future. in the nal acts violence 37.071(b)(2).4 The rec- in Art. term is used during following colloquy ord reflects eighth point of error is without Appellant’s dire examination: Faulkner’s voir The evidence shows merit. Now, the Okay. Q. (by prosecutor) T_H_just years three before raped S_C_and problem some- presents a probability word murdered he attacked and would con- 37.071(b)(2) of violence that commit criminal acts “whether asks the 4. Article society.” continuing threat to probability would stitute that the defendant there is a people may times. To some limit who be from A. There is no on that. it’s 10 If engineering background, proba- percent, kind of then I would have to answer it bility range anywhere yes. can from a zero percent probability percent ato hundred Q. Depending on the facts of the ease. probability anywhere or in between. case, yes. A. The facts of the might people probability Some consider questioned on Defense counsel then Faulkner

being something percent. more than 50 fully position.6 this issue to understand his people might say likely Some it’s more following: The record reflects the your feelings than not. are about What counsel) Q. (by Defense Let’s talk about you: the word? When the asks your probability related to the on answers probability Is there the defendant would Question your testimony, I understood acts, commit criminal future how would your probability statement to be that the play your word mind? would What you any percentage would cause to vote you think it would mean? yes. Is that a fair summation of what Faulkner) (by A. I would think it would said? mean to me—and I do have a technical Yes, A. sir. background percentage there is a —that occurring, chance of this whether is At the conclusion of Faulkner’s voir dire cetera,

property damage, et okay? Then I examination, defense counsel moved that yes. could answer that proba- “based on his answers related would be able to answer that would A. A. beyond long point that I percentage cent ability bility Q. So, you Q. Would there be a certain Yes, I wouldn’t —I could answer that as probability? Ias ^[5] or 20 a reasonable doubt? I or sir. had a have basis, would have to reach before something percent probability percent. maybe have a 10 put of that nature? it on kind of a percent possi percent prob- question yes mean, like, percentage or 50 per- you v.well App.1991), and cases cited therein.7 Accord instruct punishment issue. term the trial court does not err bility S.W.2d tive stricken challenged him. defined, The term motion, juror, “probability” issue 607, and this Court has but defense counsel cause[.]” the State 632 “probability” Question (Tex.Crim.App.1991); S.W.2d as to See as used in the second accepted Earhart v. the definition 2 [he] is not repeatedly in refusing peremptorily (Tex.Crim. statutorily should be prospec- denied of Cald held 823 Q. 3.01, Okay. V.A.C.C.P., therefore, ing to Art. indicated, emphasis sup- 5. provided Unless otherwise all is for a term does not render irrelevant a plied by the author. juror’s understanding prospective of that term. Indeed, Woolridge, 827 at "the un 906. By saying though inquiry

6. "even such [into derstanding becomes more crucial to the intelli conception probability] Faulkner’s of could have gent exercise of either the State’s or the defen totally judge, appel been barred the trial peremptory challenges[.]” We dant’s Id. held nothing lant's counsel would have known parties there the were entitled to ”, ’probability’ Faulkner’s views on the dissent venireperson understanding his of an unde on decides, majority contends a of this Court “based here, that, fined as in and term contained upon ambiguous testimony judge that the trial charge crucial to an issue in the court's to the solicited,” allowed to be the trial jury. doing, Id. In so this Court overruled im op. p. abused his discretion. See dis. 159. plicitly progeny and its held that Cuevas dissent, fostering in the idea that the trial inquiry may an undefined be foreclosed into term questioning, could have foreclosed such judge. in the trial The dissent therefore errs ignores pronouncements this Court’s recent in relying on such caselaw. (Tex.Crim. Woolridge v. 827 S.W.2d 900 App.1992), where we discussed the dire ex voir 7. Moreover, judge’s a trial refusal to define the prospective juror’s understanding amination of a poses problems. term State, no constitutional Lewis v. of an undefined term which will be used in the (Tex.Crim.App. charge jury, court’s 562-63 reasonable doubt. viz: 1991). The Court stated that the fact that no definition is Cuevas, in simply term is to be taken and understood in cannot be “[i]t its doubted acceptation language.8 in ‘probability’ special usual common in means more issue 2 than it did in mind of Mr. no. Faulk- Appellant directs us to Cuevas Cuevas, agree reviewing ner.” After (Tex.Crim.App.1987), S.W.2d 381 where this appellant. during Faulkner’s answers his recognized dictionary defini- Court various “proba- dire indicate that he understood voir “probability” tions of the term when address- bility” any percent rather possibility as than ing confronting in the same issue us “good as a “likelihood” or chance”. In its Cuevas, judice. cause sub we stated: acceptation, “probability” is usual a some- Dictionary in- ‘probability’ definitions of thing “possibility.”10 more than a As this ‘likelihood; reality appearance clude: or Smith, Court stated truth; ground presumption; reasonable Cuevas, in which we relied “we know verisimilitude; consonance reason.... special proof the second issue calls for A condition or state when there created is more than a bare future chance of violence.” more evidence favor of the existence a Requiring possibility more than a mere given proposition is it.’ than there defendant commit criminal acts of (5th Dictionary Law Black’s ed. continuing violence would constitute 1979); ‘Something probable,’ with that is society prevents threat the freakish and meaning ‘probable’ ‘supported by evidence penalty. wanton assessment of the death strong enough presumption to establish likely proof; but to be or become true “probability” Faulkner understood Since Collegiate or real.’ Webster’s New Dictio- only “possibility”11, properly as he was (1980). nary challengeable for hold the trial cause. We Cuevas, 742 S.W.2d at In that denying appel court abused its discretion challenged prospective defendant for cause a challenge. lant’s Pursuant Harris v. juror understanding on the basis of his the State, (Tex.Crim.App. “probability.” contend- term The defendant 1989), appellant has demonstrated that this potential juror “faulty ed the had a under- Appellant’s error was reversible. fourth standing” of the term in the as used second point of error sustained. ex- During issue. his voir dire amination, judgment of the trial court is re- in several venireman stated versed, ways understanding term.9 After and the cause remanded reviewing testimony, the venireman’s court. rejected

Court the defendant’s contention expressed faulty that the venireman a under- CAMPBELL, dissenting. Judge, standing “probability” of the term and held did not the trial court abuse its discretion in upon vague portions of the voir Based dire denying challenge defendant’s cause record, majority opinion concludes that on this venireman. Id. at 347. in deny- abused his discretion ing appellant’s challenge for cause of venire- present In the asserts responses “drastically person agree Faulkner. I cannot Faulkner’s differ- Charles are majority’s ent” from those the venireman rationale. elicited from provides: Dictionary gives Collegiate New 8. Article 3.01 10. Webster's words, following example use of the phrases as of the word All used and terms Code probable “possible”: possible “it are to be taken and in their usual is but not understood except acceptation language, in common he will win.” specially where defined. 11. The dissent asserts that Faulkner's voir dire stated, juror probabil- prospective e.g.,

9. p. testimony ambiguous. op. at See dis. 159. ity “implies good that it is a that it chance would contrary, quite is On the we find the happen." “[M]y there definition would be that is straightforward, quoted and that the clear and repeated. strong potential a for that act to be portions upon of the voir dire which dissent likely happen, that it is to but there is Not strong potential a ju- "stronger happen;” relies neither contradict nor rehabilitate the for it to previously possibly;” etc. 742 S.W.2d at ror’s stated views. than See

149 grant challenge A trial court should a In th< FAULKNER: only potential juror’s if cause a statements No, you would be PROSECUTOR: able juror’s ‘pre indicate that views “would to answer them no that’s what the facts substantially impair performance

vent or you? showed juror of his duties as a accordance with Yes, FAULKNER: sir. instruction and oath.’” Cockrum v. words, In other its the PROSECUTOR: 577, (Tex.Cr.App.1988), 758 S.W.2d 592 cert. you prove burden on the State to be- denied, 1858, 489 U.S. 109 S.Ct. 108 yond you a reasonable doubt that should (1989), quoting Sharp L.Ed.2d 825 questions yes you answer these before (Tex.Cr.App.1986), cert. yes? should answer them denied, U.S. S.Ct. Yes, that, I (1988). FAULKNER: understand L.Ed.2d 159 A trial court’s decision yes. grant deny challenge or a cause subject appellate review under an abuse If the doesn’t PROSECUTOR: State Cockrum, discretion standard. burden, you meet that be able to according great at 584. The rationale behind answer the no? judge’s deference to the trial decision to Yes, FAULKNER: sir. grant deny challenge or for cause is that PROSECUTOR: The fact that a death finding upon “such a is based determinations sentence, sentence is out there or a life credibility of demeanor and particu that are depending responses, on the wouldn’t influ- larly judge’s province” within a trial because your questions? ence answer to those jurors sees the and hears Yes, FAULKNER: sir. Witt, testimony. their Wainwright v. 412, 428, 844, 854, going

U.S. PROSECUTOR: You’re to decide S.Ct. 83 L.Ed.2d (1985). presented? it on the facts of the evidence FAULKNER: That is correct. upon portions Based dire voir Article voir dire record the second ner was biased majority quoted 35.16(c)(2).2 concludes that was entitled to record, however, The remainder of the majority opinion, the law venireperson issue,1 rely, indicates that in violation of pertinent Faulk- him prove prove stand and PROSECUTOR: FAULKNER: that the defendant is ^[5] n agree he’s not n with that Yes, sir, It’s for the n guilty. n principle? guilty, sure You under- n do. not for n Faulkner During harbored no such bias. n n n n n n dire, voir exchanges other were as follows: Likewise, [Special PROSECUTOR: [Wjould PROSECUTOR: ... be you beyond if I convince Issue] reason- to, having able guilty found someone doubt, you yes? able will answer offense, it, if the evidence called for Yes, FAULKNER: sir. questions, answer Special these Issue Special going

No. 1 and nega- Issue No. 2 in PROSECUTOR: You are not If prove you beyond any tive? that’s what the make evidence showed me doubt you? yes? that the answer should be 1. At the time of vided in relevant 071(b)(2) jury: lence that would constitute a [at the shall submit the evidence defendant would commit criminal acts of vio- (b) (2) society; On conclusion of the whether there is a of the Code of Criminal Procedure n n part: appellant's phase], punishment following n probability presentation three issues to the ^[*] trial, continuing ^[*] Article 37.- the court that the threat n pro- 2. Article cedure juror] may which the defense is defense to some the defendant is gation (c) 2. That he has a bias or A following of the law provides: challenge 35.16(c)(2) thereof or of the Sj< be made reasons: n for cause being prosecuted phase applicable of the Code of Criminal entitled to ! n of the offense for which the defense for [toward n to the case prejudice against rely, or as a miti- j£ either potential therefor. any n upon Pro- as a

150 very strong potential of that individual No, “a sir.

FAULKNER: to commit acts violence.” Additionally, appellant’s questioned counsel following during Faulkner voir dire. noted that at 346. This Court ap- Faulkner and exchange occurred between covered ten of Cullather the examination attorney concerning pun- pellant’s the second provided perfect pages in the record and issue. ishment could continue illustration of how voir dire you ... COUNSEL: Could DEFENSE interminably ques- if counsel were allowed ever, somebody guilty of a finding after juror concerning every prospective tion each murder, you you, yourself capital —and Id. at 346- legal term in the case. involved you, judge told alone know this. As no clearer comments were 347. Cullather’s get your here to answers. Could we’re Faulkner, yet judge the trial than those of Question no on 2? ever vote failing in no abuse of discretion committed Yes, sir. FAULKNER: Id. at 347. for cause. excuse Cullather Initially, could have com the trial court any inquiry into Faulkner’s pletely foreclosed concluding that Faulkner’s comments In “probability.” conception of Cuevas bias, majority upon dictio- relies belie (Tex.Cr.App.1987), cert. in nary “probability” mentioned definitions denied, 1015, 108 485 U.S. S.Ct. “likeli- definitions included Cuevas. Those (1988); Esquivel v. L.Ed.2d 716 truth; hood; reality reason- appearance of or (Tex.Cr.App.1980), cert. de verisimilitude; ground presumption; able nied, 66 L.Ed.2d 449 U.S. S.Ct. or ... A condition to reason consonance (1980). inquiry though such could Even in is more evidence created when there state totally judge, been barred have given proposition the existence of a favor of appellant’s counsel would have known defini- against it.” Id. These than there is “probability,” nothing views on of Faulkner’s something is consistency. That lack tions decides, upon ambiguous majority based necessarily that more “likely” does not mean testimony judge allowed to be that the trial thing. of that favors the existence evidence solicited, dis that the trial abused his failing Faulkner to exclude cretion record, reviewing dire After the entire voir decision, majority making cause. clearly say that I cannot language I fail to upon relies from Cuevas. denying appellant’s abused his discretion any way supports the see how Cuevas quoted portions challenge for cause. The majority’s position. majority dire record the voir Cuevas, venireperson Cullather was com- vague at best. Faulkner’s relies are “probability.” asked to define only conception of his internal ments reveal implies that it responded that “it Cullather in law. that is undefined “probability,” a term ... happen it would good is a chance that im- propensity to reveal no His statements is a [M]y would be that there definition or in a freakish wan- pose penalty death to be re- strong potential for that act Throughout remainder of ton manner. likely happen, that it is but peated. Not dire, during he voir Faulkner’s hap- strong potential for it to there is a would hold the unequivocally that he stated than “stronger possibly;” than “less pen;” proof, that he to its burden of be- likely probability ... is somewhere facts of the his answers on the base possible;” “somewhere likely and tween punish- second not answer the that he would likely;” “not neces- potential and between affirmatively “all the time.” ment not;’” “stronger sarily likely than ‘more and found judge Faulkner observed equiva- “not that it was potential;” than a jury. excluding him from the grounds no for potential, that it was somewhere lent to judge acted that the trial conclude would likely ‘more than potential and between refusing to exclude in his discretion within likely not;”’ that ‘more “I don’t believe views Faulkner’s for cause because criteria;” Faulkner strong “a to me a than not’ is perfor- impaired his way have in no repeated;” that the act would be likelihood duty juror, parties may manee of his as a and would call to the court’s attention such appellant’s point overrule of error four. rehearing. in failure a motion for This notice gives appellate opportunity courts to examine MeCORMICK, P.J., and WHITE overlooked, possibly an promoting issue thus OVERSTREET, JJ., join. efficiency legal system. in our Just as a trial independent per- has certain duties to OPINION ON STATE’S MOTION trial, perform form at a when she fails to FOR REHEARING object. parties may of those duties the Like- wise, parties may MEYERS, appellate setting in an Judge. object, through rehearing, a motion for an original granted appel- On submission we appellate systemic court’s failure to address

lant relief and reversed his conviction based requirements original on submission. This on the trial challenge court’s denial of a for objection after the fact is not unfair to one juror prospective cause for Faulkner. This party other, or the but rather it maintains granted Court has now the States’s second ground in their motion for rehearing. integrity system by the essential of our forc- argues “any for the first time that ing appellate systemic courts to observe their error from challenge the denial of the for requirements. In these instances and in the cause was cured because the trial did justice, interest of grant the decision to grant appellant one peremptory additional rehearing State’s motion for is left within the Consequently, appellant strike.” now insists See, Boyle, sound discretion of our Court. rehearing that it would be unfair to allow Accordingly, at 141. the State’s argument the State to raise this new in their ground second rehearing its motion for motion rehearing. for Because we will allow granted to appellant pre- determine whether argument, the State’s we overrule objecting served error in venireperson to a objection and their remaining points of error based on a challenge trial court’s denial of a and affirm judgment of the trial court. for cause.

I. Today, we are asked to assess the role of II. appellate courts in direct Spe review cases. original On submission we reversed cifically, we must determine what must be appellant’s conviction based on the trial argued appellate to an court and what that challenge court’s denial of a cause court must review independently reaching juror prospective Faulkner. However on re arguments the merits of the parties. hearing, argues the State because Rule 74 of the Appellate Texas Rules of strike, peremptory trial court reinstated one governs preparation Procedure filing preserve has failed to error. appeals briefs direct to this Court. See preserve order to error for a trial court’s 210(b). Tex.R.App.P. previously We have challenge denial of an valid when, held justice there are times “as re quires” justice,” or “in the interest of cause it must be demonstrated on the record appellate may court supplemental consider a specific asserted a clear and or rehearing brief a motion for to decide an challenge clearly articulating for cause presented issue original in the briefs. therefor, grounds peremptory that he used a State, Boyle See v. 820 S.W.2d challenge juror, peremp on that that all his (Tex.Crim.App.1991) (opinion on rehearing), cert. tory exhausted, challenges were that his re — denied, -, U.S. 112 S.Ct. 117 quest denied, for additional strikes is (1992); L.Ed.2d 520 Rochelle v. objectional juror that an sat on the case. (Tex.Crim.App.1990). S.W.2d 121 (Tex. Harris v. Crim.App.1989); Felder v. appellate

Where an court fails to (Tex.Crim.App.1988); Payton address issues of whether error been has preserved parties, or forfeited (Tex.Crim.App.1978). S.W.2d 677 case, really appellant’s you trial the defendant. Do believe that court peremptory policeman’s one strike.1 Where a you

reinstated could ever strikes, peremptory reinstates trial court voluntary, regardless testimony that it was harm, party complaining appeal show facts, the other and throw out that juror that one sat on must show additional confession and find the defendant not per than the of reinstated the case number guilty? emptory strikes. Martinez v. I be NUNEZ: believe that would kind 413, 415 Bell v. (Tex.Crim.App.1988); of hard to do. (Tex.Crim.App. I DEFENSE understand. COUNSEL: 1986). harm, appellant In this to show said, why asking, I’m That’s as the de impermissibly show the trial court must your we’re not interested —we want atti- challenge prospec two nied his for cause for tudes. is, jurors. That it is not sufficient tive merely that the court show Okay. it NUNEZ: Could be thrown incorrectly challenge for cause denied his out, you say? Faulkner, appel juror rather prospective but out, Thrown DEFENSE COUNSEL: incorrectly show the trial court lant must guilty? find the not Even defendant challenge to a for cause as second denied though you believed that confession

juror. further address Therefore we must voluntary true that it was was but complaint propriety of as to the was, fact, really guilty person in concerning a the trial court’s action second charged what he was with? juror. prospective No, sir, I don’t think so. NUNEZ: five, appellant ar of error DEFENSE understand COUNSEL: failing in gues that the trial erred court your tough, that that would but answer be prospective juror Ignacio Nunez for exclude that? is that could not do against appel since Nunez was biased cause 35.16(a)(9).2 Ap in violation of Article lant No, NUNEZ: sir. upon the pellant his claim of bias fact bases exchange, appellant also upon this ar- Based of the Hous Nunez had been a member gues that Nunez under Arti- was excludable Department past for the nine ton Police 35.16(c)(2).3 argues in re- cle The State bias, appel years. As evidence of Nunez’s sponse that the remainder of Nunez’s testi- following our lant directs attention to against mony reveals that was not biased he exchange appellant’s trial counsel between by appellant, but was confused Nunez: appellant’s attorney. from Assume that DEFENSE COUNSEL: Nunez, Concerning appellant’s challenge to body some- that would lead evidence analogous faced situation in this Court person body logical to a that a conclusion (Tex.Crim. Phillips v. guilty of a murder was based capital was grounds, Her App.1985), overruled on other essentially credibility police on the offi- (Tex. 744, 752 from who took statement nandez cers written 1. were believed upon by indicates ed one additional tional attorney ed for an identifiable identifiable Article Appellant following reasons: either (a) disagree. The the additional ... A preemptory the state or the defense for the trial court and identified five 35.16(a)(9) whether, challenge prospective juror. argues to have been preemptory strikes. peremptory in the motion record venireperson. all, pertinent prospective cause The trial court indicates requested strike but improperly strike may granted part provides: be jurors rehearing five addi- However, made nothing for an grant- grant- ruled who 3. Article defense for the defense fense (c) of or gation (2) 9. That the law A That he defendant is :}: challenge to some against the * thereof or of the 35.16, any sjs he has applicable has a * entitled phase for cause being prosecuted or as a miti- pertinent -h bias or defendant; a bias or * following of the offense ‘ n prejudice punishment therefor. * may rely, part prejudice case 4- be either reasons: provides: * made ^[*] for which as a de- * favor any Crim.App.1988). Phillips, appellant In argues we noted that that his confessions should challenged juror “clearly had the and consis suppressed they have been because were the tently disregard stated that he could not an product illegal of an warrantless arrest. In confession, illegally obtained he would have two, point appellant argues of error subject challenge been to a for cause.” Phil physical certain evidence retrieved from his lips, 701 S.W.2d at 888. When the law had apartment suppressed should have been be- clearly however, explained juror, been product illegal cause it too was the of an he indicated that he would follow the law and three, In point warrantless arrest. of error disregard the confession. Id. en Since the appellant argues that the trial court erred juror tire voir dire revealed that the was not failing grant suppress his motions to be- biased, the trial court had committed no er cause his sup- warrantless arrest was not refusing ror in to exclude him for cause. Id. ported by probable cause. Likewise, the record of the entire voir dire of supports Nunez the trial court’s refusal to Appellant argues points of error response excuse Nunez. In question to a one and two that justify the State failed to from the trial concerning whether he according his arrest requirements of could disregard follow the law and an invol- through Articles 14.01 14.04 of confession, the Code untary answered, “Yes, Nunez sir.” appellant’s Nunez testified that Criminal Procedure. attor- We will not address ney “just explained had it a little differ- arguments substance con ent[ly]. it, really.” didn’t understand Nu- cerning provisions the cited of the code be “just nez admitted that got he confused on argu cause the record reveals that those response that there.” In ques- to clarified ments were not made to the trial court. appellant’s attorney, tions from un- Nunez appellant’s pretrial Neither of motions men equivocally stated that he would tions the articles of the code now cited on involuntary person confession and find a appeal, they any nor do mention substantive guilty capital murder even he knew the argument through based on Articles 14.01 person had committed the crime.4 On this 14.04. The statement of facts likewise con record, we conclude that the trial court com- provisions. tains no mention of those code If mitted no refusing abuse of discretion in objection urged appeal differs from grant appellant’s challenge regard- for cause that, trial, urged nothing presented is ing Nunez. review. Rezac v. appellant Because fails to demonstrate that Therefore, (Tex.Crim.App.1990). we over incorrectly the trial court appel- overruled appellant’s points rule of error one and two.

lant’s strike for prospective cause of two jurors, appellant’s points fourth and fifth Concerning appellant’s point of error error are overruled. The trial court commit- three, however, pretrial allege motion did ted no overruling abuse discretion in ap- that his supported proba- arrest was not pellant’s challenge for regarding cause Nu- Therefore, ble cause. we will address the nez, and the perempto- reinstatement of one police probable of whether the had ry strike cured error prospective as to cause to arrest when was arrested juror ap- Faulkner. We now continue with 27,1988. September at 4:30 a.m. on Accord- pellant’s remaining points of appeal. error on ing appellant, “possessed the information

II. [by police] was insufficient to warrant a one, two, Appellant’s points Appellant reasonable man to believe that had of error one, point three are interrelated. of error argues committed an offense.” The State Yes, 4. The relevant from the record reads: NUNEZ: sir. involuntary NUNEZ: I would throw [the confession] out. person DEFENSE COUNSEL: And find that guilty capital

that guilty? knew [sic] murder not six, ar of error supported arrest was denying his gues trial court that the erred probable cause. mistrial, guilt during the motion for made Probable cause exists “when phase, concerning a The witness’ comment. within facts and circumstances an officer’s witness, police officer prosecutor asked the knowledge and of which he has personal Ross, appellant if she whom Theresa knew reasonably trustworthy information are suffi following had from the interview room called person of cau cient to warrant a reasonable did interrogation. his Ross testified that she that, not,” likely in the more than tion belief appellant had precisely not whom know particular suspect has committed an of called, he appellant that told her that but had 803, 805 fense. Castillo v. 818 S.W.2d parole and officer.” had called “his boss (Tex.Crim.App.1991). probable A cause n. Appellant objected, and trial court struck issue, however, analyzed cannot be instructed the comment from record and according precision mathematical to some argues disregard Appellant it. to issue, by generalized because the its formula him prejudicial that was to the comment nature, very presents quintessential “a exam parole never been and because he has case-by-case ple necessity of the determi “obviously implied Appellant that comment the facts nation based and circum prior felony conviction.” had at least one v. stances .shown.” Woodward response, argues that the instruc the State (Tex.Crim.App.1982). In de disregard any tion cured error. exists, termining probable whether cause a trial general is that rule practical factual are concerned with “the and suffi judge’s will be instruction eveiyday life on rea considerations of any answer. unresponsive cient cure men, prudent legal and not techni sonable (Tex. 136, 138 Williams v. cians, Id., Brinegar quoting act.” v. United As could have an Crim.App.1983). Ross (1949). States, 160, 175 338 U.S. simply that she not know whom swered did called, appellant her unre had answer was Appellant not arrested until 4:30 was Also, “parole” sponsive. reference September after a.m. on some two hours The refer undoubtedly was inadmissible. police voluntarily accompanied the to the he ence, however, not was embellished arrest, time of the police station.5 At the inflammatory way so as to and “was not C_ S_ police knew claimed to efficacy of the trial court’s undermine the sexually assaulted and have been stabbed disregard it.” instruction to Gardner empty she as “Preston.” The someone knew C_ n (Tex.Crim.App. M_ S_ field in which and 1987). T_ n appellant’s point of error overrule We found bodies were bordered six. only parking apartment complex, lot of the seven, com- appellant yards appellant point resided. of error from where in evi- plains trial court’s admission Appellant only person living in that was the photographs of the bodies complex who named Preston. At the dence of three was M_T_which S_ C_and were station, police appel- police learned autopsy taken the bodies were on prior had a assault on his record while lant sexual S_C_On photo- argues that Appellant table. knew and record, admitted be- graphs not have been that the made should we conclude State predi- lay proper cause failed showing that the facts and the State at least minimal complaint admissibility. Appellant’s police cate for were suffi- circumstances known witness, identifying Dr. Robert reasonably prudent person is that to warrant a cient testify that he Jordan, “possibly could not appellant had murdered in the belief that accurately Therefore, fairly re- S_C_, pictures] very [knew least. at the in them.” shown flected] [was] of error three. what we overrule challenge to findings tary. Appellant's no brief contains fact that 5. The trial entered placed findings. 4:30 under arrest until was these appellant’s confessions were volun- a.m. and that proper prosecutor inquired that the from the argues predicate State third T_H_, your say laid Texas Rule of Criminal Evidence “What did mother under Additionally, argues gone out this man out when found had she previous girl?” since elicited from raped The trial court another investigating concerning the appellant’s objections two officers sustained each of S_C_and M___ inflicted on wounds questions these instructed the T_, admitting pic- was no error in there question. initial disregard the depicted tures that those wounds. stand, Later, appellant took the witness Police officers Don Hamilton Vincent and prosecutor proceeded question and the to and Cook testified described wounds the rape allegations him in about the contained depicted in without pictures, which are the prosecutor that exhibit 50. The asserted objection appellant. objection from “An to to appellant moved from New York had photographic evidence is same waived the C_H_, 1983, in a Houston “because photographs information contained in the 16-year-old in a girl New York swore out conveyed jury in to the some form.” other you raped complaint knifepoint.” that her at (Tex. 195, 800 Havard v. S.W.2d 205 attorney objected, Appellant’s ap- to which Appellant any Crim.App.1989). ob waived pellant responded, object. “Don’t was That jection by failing object to to the my ex-girlfriend. together.” A We went conveyed the same information to the later, prosecutor saying short time was jury. explain you why “I’ll in a ask to she swore you she grabbed sworn affidavit claimed her Also, Jordan, Dr. Robert an assis ,” knifepoint appel- at when she when was— County tant medical examiner for the Harris asserted, objected. attorney Appellant lant’s Office, pic Examiner’s Medical verified however, “would that he like to discuss this.” photograph tures. A witness who a verifies photographer, need not have been the actual judge hearing point At that the trial held a present photo nor even have been when the jury’s presence. trial outside of the The graph taken. was DeLuna v. judge appellant’s objections and sustained (Tex.Crim.App.1986). There “disregard last instructed the to no in the was error trial court’s admission of question proseeutor[,] ... the defen- photographs. We overrule same[, response dant’s uncounseled point of error seven. any any ... references and] to documents Additionally, that evidence ...” are not in nine, appellant error ar prohibited the trial the State from gues refusing that the trial court in erred placing jury. exhibit before the grant during motions for mistrial made cross-examination, Upon prose- punishment phase. further The motions were questions appellant, you cutor a fact left upon based asked “It’s prosecutor from the Buffalo, York, you New because were arrest- exhibiting and “the matter inadmissible isn’t jury.” charged degree rape; ed and with first before the The “inadmissible matter” appellant’s attorney that After re- appellant true?” refers is State’s a exhibit C_ that,” sponded, “Object to court copy complaint by of a sworn filed one H_ objection. Appellant January overruled the subse- dated made out quently that he had been arrested admitted appellant rape incident that Buffalo, degree rape first in in charged and in occurred New York. Appellant’s attorney lodged no New York. T_H_, prosecutor The asked anoth- objection to this answer. alleged appellant,

er sexual assault victim of “T_, you raped Appellant find did out after Preston claims this record shows (i.e., you raped girl “express part desire on that he New York?” that the C_ H_) prosecutor jurors asked the minds of [was] also State to inflame T_ H_, anything dangerousness.” “Did on future find out the issue errors, appellant “requests A you?”6 about after he Based these Preston assaulted C_H_that Buffalo, York. concerned the occurred in New This sexual assault judgment Hughes v. that the reformed life 833 S.W.2d 137 be reflect Court However, (Tex.Crim.App.1992). argues any the admis- imprisonment.” The sion these exhibits harmless. by the trial See errors were cured court’s instruc- 81(b)(2). Tex.R.App.P. any other tions and waived object failing and volun- errors both only In this the State not admitted testifying. tarily T_ judgment, they but called also H_to the stand. testified that one She disregard normally An instruction to cures eighth in the summer her afternoon between concerning improper error remarks and grade years and ninth school came Stoker, admission evidence. apartment. over mother’s She an- to her (Tex. 13; Woods door, appellant, spoke swered Crim.App.1982). expressly through As whom knew his cousin. she she any refer instructed go to preparing the beach after- evidence, ences to documents not clothes, change noon had to she said questions, prosecutor’s and even goodbye began Appellant shut the door. Any error responses. uncounseled concern put T_ barged in foot the door and inside. his by ing cured court’s these matters was the H_then recounted the details of explicit instructions. raped Appellant how appellant her. Concerning appellant’s arguments subsequently aggravated arrested for sexual attorney’s his responses about his own and assault. objection, general appel conclude that we on the time of his release the Between arguments “[W]hen lant’s are without merit. trial, charge appellant his sexual assault and testimony as a defendant offers the same victim, allegedly approached threatened the to, objected that or the same evidence is testified, her she turned to if she and when source, from introduced another without ob run, gun took Appellant fired a at her. the in jection, position the is not to defendant in cause and that neither stand this testified Stoker, complain appeal.” on place. rape the nor the took assault ever voluntarily rape Appellant discussed the testimony concerning Most the this issue of in allegations stemming from the incident charge but involved not the assault rather Therefore, ap New York. we conclude that appellant raped the of whether position complain not to on pellant is in a T_H_, rape charge as well as another point appeal appellant’s and of error overrule in admission the of New York. The of State nine. the convictions tend to corroborate two H_ n twelve, point appellant of error story. T version of the Howev- complains of trial court’s admission er, the harm the admission of the incremental of during 47 and evidence of State’s exhibits appellant’s adjudication ag- for the deferred punishment phase of the trial. compared the State’s gravated negligible assault is when pertaining 47 and 51 are documents appellant’s adju- exhibits to of deferred the admission adjudication appellant’s ten-year deferred aggravated to assault with for sexual a dication T_ T_H-was aggravated for assault term If the child. believed H._Appellant argues that story when he en- credible and believed her adjudi- plea prop- his in that he was not tered belief the result of the deferred cation, change in erly according require- to no admonished the there is incremental presence or absence of Appellant’s of convic- belief based on the ments Article 26.13.7 adjudication aggravated by the deferred documents. tion for assault was reversed second 7. Article shall be of nolo defendant of: (b) (a) (1) No Prior to offense; contendere, accepted by 26.13 plea n range accepting of provides n : of guilty or of nolo the the ^[*] court shall admonish the court plea pertinent part: ^[*] of unless it guilty ^[*] attached contendere or appears n plea to that the defendant of shows plea provided, sufficient, (c)In admonishing the defendant as herein admonishment is free and plea that he was not aware of the substantial and that he was misled unless voluntary. is of mentally compliance the court. defendant competent by or harmed consequences affirmatively the court is the by last Accordingly, appellant’s “disregard remark the admission of aggravated any pur- is judgment prosecutor assault harmless and not consider instance, beyond a reasonable pose Appellant’s doubt motion for whatsoever.” point mistrial, twelfth error is re- however, was overruled.8 81(b)(2). versed. See Tex.R.App.P. error, point appellant In his tenth Appellant’s points of error ten and complains act of overrul of the trial court’s jury argument by both concern eleven ing objection. his initial his eleventh prosecution. Since brief com error, complains discussion, points ten bines and eleven grant his motion for trial court’s refusal During address them in combination. will appellant’s argu mistrial. The substance closing argument punishment, prose prosecutor’s ment is that the comments were suggest “I cutor said that the testimo prejudicial so that an instruction to T_H_alone ny enough put is they not caused. could cure the harm Addi in this And for that needle man’s arm. little tionally, argues brought [appel girl be down here and for overruling objection initial court’s of his com attorneys] put again on trial lant’s her by functioning li pounded the error as “a right.” appel court overruled second, direct, cense for the more comment.” objection lant’s to the final comment. Short responds both comments were thereafter, ly prosecutor “They [ap said cured, prosecutor’s the initial remark pellant’s attorneys] nothing wrong. have done apology9 and the latter remark trying They’re protect their client. It’s court’s instruction. job. right thing It it’s the their doesn’t mean jury argument proper, To be must appellant’s to do.” The trial court sustained (1) objection to final the comment and instructed constitute either a summation of the evi- During closing arguments by ing simple questions the the a few on cross examina- argued appellant pres- put Defense Counsel did not tion of the witness he on the stand. I danger, a ent future and in fact he could be that object to it. response rehabilitated. testimony the State recalled the apologize. PROSECUTOR: I I don’t want to T_H_The following of is the insinuate— complete exchange prosecution, between the de- apolo- DEFENSE I don’t want his COUNSEL: and fense trial court: gy- PROSECUTOR: ... he came Then down here saying [defense PROSECUTOR: I’m not coun- Houston, behold, forbid, to and lo and God wrong. anything sel] has done Preston, poor dirty girl gets little old another object, DEFENSE I Mr. COUNSEL: Prosecu- up, 13-year-old and sets him him another vix- objection. tor. I have made an en entices him into the house. He didn’t do it. objection THE will be COURT: The overruled. guy There was another over there. I know the They nothing have PROSECUTOR: done girl but I didn’t do it. protect wrong. They’re trying to their client. But what about this new incident down right job. mean It’s their It doesn't it’s the [T_H_]'s testimony? You here? heard thing to do. put up I almost cried to because I had her here object striking I to him DEFENSE COUNSEL: testimony again. and make her relive the It my client over the shoulders of counsel day up was me that called the her before her something accusing doing us of that ain’t the prom stoiy again to tell her and it hurts to do right thing clearly to was within the you do which But that that. have to hear because that rules, girl malpractice raped we little was in her momma’s bedroom would have been jury this man made a request her take Bible our and the hadn't done it. I be instructed it, your girlfriend.” be What swear "I’ll disregard to counsel’s remarks. person person kind of does that? The kind of objection THE COURT: The will be sustained. will never do of violence a who an act Jury disregard pros- will the last remark of the anybody woman or else? any purpose ecutor and not consider for [T_ suggest you testimony I to that the of whatsoever. H_] put enough alone the is needle in I would move DEFENSE COUNSEL: for fur- girl this man’s arm. And that little to be relief, ther Your Honor. brought [defense down here counsel] and for be denied. THE COURT: That will put again right. her on trial is not Objection. put DEFENSE COUNSEL: He her of, cites, are aware no au- 9. The State and we stand, object on the Your I to him Honor. thority proposition apology that an from the raising something the issue that done we've type prosecutor any the of error. cures wrong by protecting rights, by our client's ask- (2) BAIRD, dence, dissenting. Judge, from or a reasonable deduction the evidence, (3) response opponent’s or a to an ten, majority the point To resolve of error (4) argument, plea or for law enforcement. jury disregarded portion of concludes the (Tex. Gomez argument though appellant’s the State’s even Crim.App.1985). agree that While the objection argument to that was overruled arguments totally prosecutor’s were judge’s subsequent curative in- and the trial disagree appellant’s conten proper, we portion separate limited to a struction that a of his sentence is tion reformation words, argument. the State’s In other the required. argument This is unlike that made majority jury disregarded the trial holds the Gomez, prosecutor implied the that where than judge’s more instruction did attorney willing defense to suborn required. instruction Such a result oriented perjury.10 Id. at 772. the instant perverse resolution this error certainly in overruling trial court erred authority support any is without from from objection. appellant’s initial The second any or this other Court. comment, however, immediately came almost though after the initial remark. Even disregard only

trial told the I. remark,” “last we read record indicate During punishment phase realized his error and T_ testimony presented the State disregard promptly instructed the H_, complainant had whom argument. Appellant prosecutor’s admits Thereafter, previously sexually assaulted. di that the second remark was even “more during closing argument, the fol- error associ State’s rect.” We conclude objec lowing place: overruling exchange took ated with to the initial remark was cured tion suggest PROSECUTOR: prompt instruction to the second T_H_alone enough and, accordingly, overrule remark put man’s arm. And the needle points of error ten and eleven. brought girl to be down here little AF- judgment the court is The trial McCullough and Mr. Thomas and Mr. permitted file Appellant is FIRMED. right. put again trial is not her on rehearing in motion for this cause. Objection. He DEFENSE COUNSEL: stand, J., Honor. I CLINTON, put her the Your concurs in the result. on claims, 'spe- objection dissenting opinion citing "second” which was our and states the 10. The Gomez, only argument the jury trial court was last concern' that sustained the cial However, argument improperly ap- argument struck at when we the "State’s of the Prosecutor. exchange pellant over shoulders of his counsel the view the voir dire and between the entire overruling appellant’s objection.” judge by attorneys, quite it is not trial the trial court and trial contrary, fully cognizant exchange by parties the we remain On clear. the indicates that The attorney prosecutor conclude that that concern but the was Gomez the defense believed T_H_on Gomez, dispositive the trial arguing put of this case. counsel the defense objection prose- appellant's (However, only prosecutor sustained the had min- stand. the argument appellant's that counsel cutor’s initial opposite). objected He utes before said the paid “to manufacture evidence.” was arguments, prosecutor the in between all the However, prosecutor at 771. when attempted he had in fact to make it clear that argument by stating that further elaborated court overruled called the witness. trial get appellant’s paid was "to that counsel objection, believing apparently defense counsel’s hook,” overruled defendant off the Then when was who called witness. clear Thus, appellant's objection. Id. the trial court argument prosecutor con- continued in his jury impression the final that such behavior, left the cerning the trial counsel's defense argument, appellant’s attorney would su- objection and defense counsel’s court sustained case, perjury, proper. the trial born In this prosecutor's jury disregard the instructed the impression judge left with the final appears argument. the record it From improper. argument put girl ruling concerned who court's initial stand, ruling and instruc- the second on the cross-examina- defense counsel’s dissenting opinion much of tion concerned makes 11. counsel, girl. objections by tion of the defense first and second object raising evidence, the issue that done we’ve was not a summation of the a rea- something wrong by evidence, protecting our client’s sonable deduction from the or a rights, by asking questions Therefore, simple plea a few for law enforcement. put argument

cross-examination of the witness he on issue is whether the State’s anwas object the stand. I to it. argument appellant’s answer to the coun- My sel. review of the record reveals that the apologize. I I PROSECUTOR: don’t argument response ap- State’s was not in want to insinuate— pellant’s argument. Appellant’s counsels did DEFENSE COUNSEL: I don’t want his to, mention, not refer or otherwise the testi- apology. T_ H_ mony during closing their saying PROSECUTOR: I’m not Mr. Therefore, arguments. argument the State’s McCullough any- or Mr. Thomas has done permissible. was not thing wrong. It jurispru- is axiomatic in our criminal object, DEFENSE I COUNSEL: Mr. right dence that a “[h]as defendant objection. I Prosecutor. have made an fully confront and persons cross-examine all TRIAL objection COURT: The will be who have relevant to criminal overruled.1 Grothe, charges.” parte Ex argument

The State’s continued as follows: See, (Tex.Cr.App.1984). Davis v. Alas- They nothing PROSECUTOR: have done ka, 308, 311, 1105, 1108, 415 U.S. 94 S.Ct. wrong. They’re trying protect their (1974); Texas, Washington L.Ed.2d 347 job. client. It’s their It doesn’t mean it’s 388 U.S. 87 S.Ct. 18 L.Ed.2d 1019 right thing to do. (1967); and Mississippi, Chambers v. U.S. object DEFENSE S.Ct. 35 L.Ed.2d 297 COUNSEL: to him (1973). striking my the instant client over the State called shoulders of T_H_as My a witness. accusing doing counsel us of review of the something record right thing that ain’t the reveals counsel did to do which was clearly rules, nothing within more than assert Sixth have been malpractice right Amendment request we hadn’t it. I cross-examination. See done Const, also, §I Tex. art. disregard be instructed to arguments. counsel’s “[sjhown consistently This Court has objection TRIAL COURT: The will be special arguments concern for final that con Jury sustained. will the last stitute uninvited and unsubstantiated accusa argument prosecutor and not consid- improper tions of conduct directed at a de any purpose er it for whatsoever. State, attorney.” fendant’s v. Gomez 704 MR. I McCULLOUGH: would move for See, (Tex.Cr.App.1985). S.W.2d 771 relief,

further Your Honor.2 State, (Tex.Cr. Fuentes v. 664 S.W.2d 333 State, TRIAL App.1984); Boyde COURT: That will be denied. v. 513 S.W.2d State, (Tex.Cr.App.1974); Bray 592 and v. 478 (Tex.Cr.App.1972). Boyde S.W.2d 89 II. general public and Gomez we noted that the consistently This Court has recognized concept does not understand the that defense categories permissible four jury argument: attorneys obligation are under an ethical to (1) (2) evidence; summation of the reason- represent regardless the accused of then- (3) evidence; able deduction from the answer personal opinion Boyde of their client. In we counsel; (4) argument opposing and, to stated: plea State, for law enforcement. Todd v. 598 (Tex.Cr.App.1980), S.W.2d 286 Alejan- general misunderstanding by and This the State, (Tex.Cr.App. dro v. 493 public prejudi- S.W.2d 230 to serves contribute to the 1973). jury argument It is clear argument by the instant prosecutor cial effect of an a indicated, emphasis sup- 1. parties prior agreement Unless otherwise all is 2. All had made a that the interpret phrase, court plied. the “I would move relief," for further as a motion for mistrial. judicial stamp approval’

which at a the im- strikes member bar ‘the on representing person argument, possi- proper magnifying a accused of crime. thus the State, bility harm.” Good v. 723 S.W.2d Boyde, 513 S.W.2d at 592. believe the (quoting v. (Tex.Cr.App.1986) Burke argument improperly appel- struck State’s at (Tex.Cr.App.1983). lant the of his counsel and the over shoulders Therefore, judge’s subsequent the in- trial by overruling judge trial erred by struction did not cure the caused error objection. first argument.4 the initial State’s III. Although majority recognizes the the trial judge improper overruled The the error cured the State’s first State contends was argument specifically and his instruc- prosecutor apologized when the after defense limited majority objection. argument, tion to the argument This fails for second the counsel’s First, “read to offering apolo- chooses to the record indicate two reasons. after the judge objec- prompt- the his error gy, prosecutor the continued the trial realized and same ly disregard Secondly, jury prose- the to argument. we never instructed the tionable have jury argument.” Hughes v. apology held an cures error. The cutor’s required judge’s ruling; (Tex.Cr.App.1993) (opinion at 158 to follow trial S.W.2d sup- rehearing). majority’s a in- The action is not apology an does not serve as curative by ported by record or our case either struction.3 “In the law. instant contends, majority next timely objection trial lodged a which the agrees, overruling appel- the error overruled, permitting to be- court objection, argument lant’s to initial was Orona, argument proper....” lieve the was prompt disregard to cured instruction highly improper at It is argument. sequi- This is a second non majority acknowledge a error of this Court objection tur. The first was overruled. separate and then search the record find a Therefore, the trial never instructed objection unrelated curative instruc- disregard im- the State’s initial analysis. conducting tion to avoid harm judge’s proper argument. trial instruc- only argu- tion was directed second IV. apply

ment stretched to and should be object- argument first analysis is required A harmless error ed. See, Orona, 81(b)(2).5 Tex.R.App.P. (Rule 81(b)(2) applicable 129-130 v. Orona jury argument) improper Griffin (Tex.Cr.App.1990), held: “We do not we (Tex.Cr.App.1989). 779 S.W.2d 431 improper

reach whether the ar- 81(b)(2) provides: Rule gument cured because objection appellate in a case and for If the record criminal overruled the that obvious below, reason, giv- proceedings error in no instruction to reveals judgment Finally, appellate court shall reverse the en.” similar circumstances review, court judge, by overruling appellate unless the have under “[t]hat held objection argument, puts beyond a reasonable doubt improper an to an determines 81(b)(2) State, agrees. Tex.R.App.P. majority Hughes v. 878 to the enactment of 3. The 5. Prior 1993) (Tex.Cr.App. arguments (opinion jury er S.W.2d at fn. 10 constituted reversible similar rehearing). objec when the ror even sustained jury to the the tion and instructed State, (Tex.Cr. argument. Bell 614 S.W.2d 122 v. say every to that on occasion where 4. This is not State, (Tex. App.1981); Lewis 529 S.W.2d 533 v. improper jury argument, the State continues an State, Cr.App.1975); Boyde 588 v. 513 S.W.2d court, ruling by the trial the after an erroneous (Tex.Cr.App.1974); However, Jones v. to error cannot be cured. cure such cases, (Tex.Cr.App.1947). we "In these 590 provide a error trial must do more than the argument inflammatory as to be found the so jury merely cursory to disre- instruction the Gomez, See, by 704 jury gard improper Long incurable instruction." v. the comment. (Tex.Cr.App.1991). at 772. 269 S.W.2d S.W.2d the error made no contribution to the con- such an error committed one schooled punishment. viction or to the trial, and familiar with the intricacies of the Second, error is enhanced. the nature of the (Tex. In Harris v. imply error was to trial coun- Cr.App.1989), recognized we that Rule when, engaged improper sel had conduct 81(b)(2) was the rhetorical semantic noted, previously as the conduct was consti- equivalent of the harmless standard an Third, tutionally objec- when the Supreme nounced the in Chapman Court mandated. overruled, California, tion 386 U.S. the State did not abandon S.Ct. (1967),

L.Ed.2d argument where it was held that along the but rather continued the proving beyond the State had the burden of a emphasizing perceived same line thus the complained reasonable doubt that error the impropriety part appellant’s on the of did not contribute to the verdict obtained.6 Orona, In though counsel. even the defen- objection improper jury argu- dant’s to the perform analysis To a harmless error an overruled, “completely ment was the appellate court should consider six factors. Harris, However, argument.”

In spe- we held: abandoned its cifically sought noted: “If the State had summary, reviewing a apply- court in argument objection, advance its after the ing the harmless error rule should not opposite might then an necessary.” result be propriety focus of the outcome of case, Instead, Id. 791 at 130. In S.W.2d the instant appellate trial. court prosecutor should integrity be concerned with the rather than abandoning process leading to argument the conviction argument. [or chose advance the would whether the whether but rather on impunity. probably place upon the error. tion, the court must also determine [6] possibly other evidence of court should focus punishment]. Consequently, to what sion-making; it should ask not whether the er should [1] examine the source of the cations. ^[2] the nature [5] how much reached the correct encourage extent was have Further, declaring ^[4] jurors whether error at issue its prejudiced of the it summary, probable the court should consid- weight guilt were able not on State to the error harmless error, emphasized by result, [or collateral [3] whether or weight repeat punishment], jurors’ juror properly but rather the court Fourth, reviewing In addi- it with might would impli- error, deci- weight given place upon were that because probably See, more than less of their of counsel. implication that defense obligation and should not have been undertaken. This eral examination of provide appellant determine how much Boyde, public discharge would be drawn because the does at 513 S.W.2d at personal opinion probable attorneys represent T_ trial counsel did Fifth, argument with effective assistance their constitutional understand the would feel the cross- collateral H_was are under an ethical weight the accused while it is difficult 592; argument, any of their client. juror implications improper improper nothing regard- concept Gomez, duty gen- apply law to facts in order to reach a and, believe, Finally importantly most verdict. the instant we must determine whether Harris, 790 587-588. declaring the error harmless would encour- age repeat improper argu- State to source the error in the instant case court, impunity. involved an ment with officer of the Since the enactment of as will 81(b)(2), all improper jury argument. eases of repeatedly When Rule we have held im- held, Supreme 6. The Chapman U.S. Court in put common-law harmless-error rule the burden error, error, ''Certainly illegally constitutional beneficiary prove on the of the error either to admitting highly prejudicial evidence or com- injury that there was no or to suffer a of reversal ments, person casts on someone other than the erroneously judgment." Chapman obtained prejudiced by it a burden to show it was California, v. 386 U.S. at 87 S.Ct. 828. original It harmless. is for that reason that the 162 jury argument past

proper harmless.7 Our 81(b)(2) effectively CRINER, Jr., Appellant, have applications Rule Kenneth Joe improper jury argument excluded from v. meaningful appellate review. Our reluctance finding improper jury to reverse case after Texas, Appellee. The STATE argument only encourages the to re- No. 71792. impunity. error ma- peat the The vast jority coming of cases this before Court Texas, Appeals of Court of Criminal appeal demonstrate that the State is direct En Banc. consistently improper repeatedly making arguments. June 1994. light foregoing six factors of Hards, beyond I cannot conclude a reason- did not

able doubt the error contribute assessed.

V. twenty years ago Alejandro Almost note, paused to [rjeeently alarming had an num- we have improper jury arguments to consid- ber warning signal hoped er and say, has been heard. Needless to go prosecutor sees all his work naught if the has to be be- case reversed jury argument. improper

cause of Alejandro, 493 at 281. S.W.2d teachings Alejandro not be should majority’s penal-

ignored. reluctance jury argument improper ize the State for argue only encourages outside the State general categories permissible four argument. I would sustain error ten.8 MALONEY, JJ., join

OVERSTREET and opinion. this See, State, (Tex.Cr.App. (Tex.Cr.App.1990); and Madden v. 125 Drew v. S.W.2d 7. 1990). State, (Tex.Cr. (Tex.Cr.App. 1987); S.W.2d 683 State 799 v. Rose State, (Tex. App.1987); v. 769 S.W.2d 887 Bower (Tex. Cr.App.1989); requests v. 784 S.W.2d 5 Although Harris the Court to re- life, Cr.App.1989); to confinement form his sentence Griffin remedy cause (Tex.Cr.App.1989); proper is to Jacobs v. remand (Tex.Cr.App.1990); Orona v. trial court.

Case Details

Case Name: Hughes v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 23, 1993

Citation: 878 S.W.2d 142

Docket Number: 70901

Court Abbreviation: Tex. Crim. App.