*1 JONES, Appellant, Tommy Lee Texas, Appellee.
The STATE Rocha, appeal only, Jr., on San Thomas No. 48978. Antonio, appellant. for Appeals of Criminal of Texas. Court Green, Atty and Dennis H. Dist. March John Odessa, Cadra, Atty., Dist. D. Asst. Jim April Rehearing 16, 1975. Denied Vollers, Atty., and David Mc- State’s S. Austin, Angus, Atty., Asst. State’s for State. MO-
OPINION ON APPELLANT’S TION TO REINSTATE APPEAL DOUGLAS, Judge. appeal
This is an from a for conviction punishment murder. The assessed at sixty years. per
This cause was dismissed in a cur- iam because the record contained appeal. supplemental By no notice of transcript appeal is shown that notice of timely given. The motion to reinstate granted. controlling issue, complaint attorney made that the district committed in his reversible error We overrule this contention. alleged appellant
The indictment by shooting killed Hart her Billie Jean proof supports gun. with a the alle- gation. sufficiency of the evidence challenged, but the facts be sum- will grounds evaluate the marized to better Billie Hart had lived Jean marriage he called a common-law though he was married to another even Billie At the time of the homicide woman. living in Odessa in a small house Jean with her brother Hart. William approxi- Hart testified that at William mately two o’clock afternoon horn by the of an automobile. awakened open the house the door of He heard *2 Prior to this go his Billie outside. He then counsel for the sister Jean to jury concerning his sister and another defense had stated the heard the voices of attorney: the gunshot. then district the and then a Hart “You know last William up, time it came he lying ran to the door saw Billie said he didn’t want a and Jean sitting salary, salary.” in his car raise in he wanted his appellant and An snow objection stopped pistol. appellant he walk this line of with a Then saw shot firing and her a Counsel then criticized the State’s toward stand over witness stinking proven say, being head Hart as a liar and into her and William appel- calling for Officer hid when he saw criticized the State Lin- bitch.” William coln coming the house. after it had His lant toward rested. Jones house, brought Billie the went continued: into Jean out, go and “You can call outside called Attorney up can come “If the District now, now, you it the law is all over try a here and case on some evidence law, kill I some going call the am to me people get just and because convictions Appellant of them son-of-a-bitches.” more on, go things don’t some where like at arrested later the office sometime are you going to be the line ? down attorney. of his Appellant testified and denied killing «* [*] [*] He he lived Billie testified that had Jean. easy well, say, “I know it is to he year. a He with her off and for over on pretty he probably sorry, has been con- prior felony that he con- admitted had two felonies, got victed of two he convicted victions. in felony, just a automat- 1967of ically you supposed are to means rested, Lincoln, After the defense Burnis case, assuming him I in this am that is policeman testi- an was called. He Odessa [prosecutor] what Green’s Mr. that at about he heard two fied two o’clock it, way got I primarily, that is the I then shots. He for a while and hesitated am way you got that is the sure it. door leave went to the and saw the Later he saw house, get the body in his in the house. car and go south. “ [*] [*] [*] the accused has the right a and has the defense right counsel Dawson, pathologist, a testi- Dr. David Attorneys District like whether the autopsy performed an on fied not. body Billie Hart and found two- Jean wounds, and gunshot entered face one ‡ n n passed just right on hand side of me, mean it because are bones and caused “Believe through nose the facial just thing that between only stands damage to stem. The oth- severe the brain somebody deciding there absolutely over through in er the abdomen wound they don’t they and who Two bullets who want right kidney. liver and get. ...” were want to appeared caliber which .38 body. of the in He was found Appellant’s asserted Officer the imme- to the head was wound testimony and fabricating his Lincoln was cause of diate death. per- prosecutor suborned in effect following argu- he made the find the murder when did The officers ment: weapon. amake lot thing that doesn’t “Another ground seventh
Complaint is made case, sense make it doesn’t of the sense closing argument of error me, sense to stage it doesn’t make guilt attorney at district half and day for and trywe this case trial. insinuating. don’t You he case, their the State rests their rests case that, important not that my job do Tommy Lee the witness takes Jones them defend that, then, go over there only after he me. I can stand and after money— that, more then make said after testified Lincoln, up presumably come Lincoln Court, please If it “MR. SNEED: time, presumably all available at totally the record. that is outside just those facts he testified to were *3 you objection is just material to then The out- and relevant “THE COURT: no They certainly as after is evidence he testified. record. There side the me, money a makes. would been to but all of sud- have how much Mr. Green up police den a man comes who is a of- me make this let “MR. So GREEN: ficer, you to that he heard a who claims it is every you, one of each and clear to pull up, coming by, by way car and enough pay important, you don’t me north, south, from the not not the inno- convict an money to come here and Fitch, direction of 700 but from the cent man. Tommy north and sees Lee out Jones Tommy of that and he car knows Lee re- object to that “MR. We SNEED: Tommy because over Lee mark, is outside the record. it Jones there Jones said, first, the time. all He he in answer Judge, “MR. GREEN: said, you and you can read the record if to him. to, want he crawfished a little I re- said, member he what he he said saw I will overrule COURT: “THE him in house and him he said he saw objection. Go ahead.” house, come you out of the will all and re- not constitute argument This should said, remember I him he saw come out fact or harmful new versible No house, that he got was before a is no case. There injected into the good photographs chance to look at the prosecution indication that statement or that Mr. get- Green so interested in get be- it could not had evidence that up ting there to the stand witness while to any indication nor there jury fore the testifying, he was so he could remember mind he matters jury that had other of couldn’t see the door that he made statement. when house, house his from so then he said, changed him and he see didn’t come commented the defense counsel Here out, but still it is and a over two half attorney’s salary and district about the it, says he hours before a word about he badge of easy to stand behind it was watching television he has and heard authority. insinuation There is some shots, claims, somebody two he and seen trying to show attorney was the district come out of that house.” photographs so that some Lincoln Officer testimony keep his would the witness pros- It was after this he remember that straight “so he could paid not be ecutor countered he could from the door of house couldn’t see enough try to convict an innocent man. said, house, he changed his following The occurred: ” Fur- . . . . him come out didn’t see “ fact ther, argued that the you . every . I tell each and defense . twice convicted you had been you pay one are citizens who “ you are this, automatically means job. you just . . me to tell . do will supposed him in this case” you you, on there not one of not one “ between pay enough money that Jury that can deciding who police somebody there department enough over pay or they don’t want get and who money innocent man want to try to convict an about, get.” and that is we are here
758 prosecutor by Thompson State, See also v. by was invited defense counsel. 624 (Tex.Cr.App.1972); State, Hoover v. 449 60 S.W.2d (Tex.Cr.App.1970); Green Chapman State, v. 503 237 S.W.2d State, 442, 153 221 Tex.Cr.R. S.W.2d (Tex.Cr.App.1974), prosecutor argued: (1949); State, 612 Stovall v. 153 Tex.Cr. R. (1949); 221 278 S.W.2d Erisman’s “I would ask to believe that I Errors, Manual of Reversible First Edi would intentionally knowingly tion, 512, 513; Tex.Jur.2d, Sections and 5 * * * party submitting perjured 436,page Section you.” evidence before Although different, the facts are the lan- This ordinarily Court noted that it is im- State, guage in Sikes v. S.W.2d proper prosecutor for a for the vouch applicable. (Tex.Cr.App.1973), is It is: credibility during witnesses his argu- argu- ment. Court noted that such . There is no statement or reply ment was invited and was to state- indication that the had other *4 by ments made the defense counsel when evidence that he could not before the argued: jury any nor is there indication to the jury that he had matters in mind ‘* * * I "(1) you, submit la- when he made the statement. gentlemen, dies and that the information Whaley (prosecutor) Mr. had when he argument “Such did not subvert the case, started this completely was differ- against rule injection argu- the into the ent than what came out from the witness purely personal opinion ment of the of stand.’ prosecutor the . . .” “(2) ‘They (prosecutors) don’t want State, Appellant upon relies Fowler v. struggle apartment, to have a inside the 500 In (Tex.Cr.App.1973). S.W.2d 643 go along because that doesn’t with what- prosecutor that case argued: the “I am accept the story ever that want to certainly going prosecute man not ” complainant that the has.’ my I don’t feel in guilty.” own heart is present The State that the contends case is Hawkins, Judge State, Vineyard in v. different from the Fowler case as follows: 401, 548, (1924), Tex.Cr.R. 257 S.W. stated: Fowler, prosecu- . Unlike paid tor here said he could be only “We think the safe rule enough try to convict an innocent argu- this court should not hold an Fowler, prosecutor, in man. ef- ment be reversible error unless it is in fect, right came out and told the language extreme cases where the com- opinion that the ac- that he was of the plained manifestly improper, isof harm- Here, guilty. cused was ful, prejudicial, where a mandato- or against defending was made accusations ry provision violated, of the statute is jury, in police by telling the him and the some new and harmful fact [has been] effect, do not police and the injected the case.” into pros- and do not people ‘frame’ in crimes Davidson, Judge State, in are innocent. people Allison v. ecute know Tex.Cr.App., 248 wrote: S.W.2d
“Generally speaking, argument from distinguishable which This case is though does the distinction mandatory not violate a statute Fowler case even present argument in the not reversible error unless calculated to a fine The one. properly prejudice rights than what was of the accused. case went further However, the facts of this under invited. 75O a differ- 643), re- with we would be confronted case, does not constitute argument this State, Compare Pringle v. ent situation. versible error.1 Since, how- Tex.Cr.App., shown, being error No reversible ever, at- improper implication judgment affirmed.2 tenuated, error I do not believe reversible shown, concur in the results. has been result. ROBERTS, J., concurs in the OPINION ON DISSENTING ODOM, Judge (concurring). APPELLANT’S MOTION REINSTATE TO by I concur in the results reached APPEAL ap- majority, their of but find discussion pellant’s ground of unclear seventh error MORRISON, Judge (dissenting). reasoning of the ma- confusing. jority argument complained of agree my Brother Odom invited, in I see no indication invited, but was not prosecutor’s argument majori- portions argument quoted State, supra, agree I cannot that Fowler ty opinion of ar- that would invite the line distinguishable. It should be noted objected by appellant. only gument and the case at bar both Fowler remotely quoted appellant’s objection to court overruled the complaint is connected with that which thereby conveying to is, know the time it came last jury his salary, up, he said he didn’t want raise proper. *5 salary.” Objection to this he wanted his this con- I dissent the affirmance of this was sustained. But how viction. salary be invite the statement on said to enough mon- argument, pay don’t innocent
ey to come here and an prose-
man”? “The Would weather,” invite rainy
cutor doesn’t like response, rainy doesn’t “This weather
upset me enough to come and convict here jury argu- an innocent man”? The other parte Leon Ex Edmond LEOPARD. by appellant’s quoted by
ments No. 49802. majority are even less to the ar- connected Appeals of Texas. Court of Criminal gument prosecutor. of the March 1975. improper argument prosecu- of the tor, however, I do not believe constituted April Rehearing 16, 1975. Denied Although reversible it carried implication ap- believed innocent,
pellant was not not the that was
primary thrust of the Had upon matter,
dwelt so as make the obvious,
implication or had he more opinion (see
a more direct statement of his State, Tex.Cr.App.,
Fowler v. majority agree, publication. 1. new does not not for It contains no Court It questions record the writer would the Fowler It is a overrule law. matter authority. accepted case. cited or but will Thompson State, 514 Footnote 2 See (Tex.Cr.App.1974). Eight grounds of error are discussed S.W.2d 275 opinion. desginated Part II of this