*1 136; Tex.Cr.App., 472 S.W.2d Osborne
State, Tex.Cr.App.,
prosecutor sup which will not constitute evidence
do argument police prosecutor’s
port was shot.
officer argument prosecutor’s
We find new and harmful
placed supported were not
facts Lopez v. Tex.Cr. trial. See 844; Rodriquez v.
App., 500 S.W.2d light 778. In
Tex.Cr.App., 520 S.W.2d assessed, punishment we cannot con harmless. such error was
clude that is reversed and the cause
remanded. approved by the Court.
Opinion Arthur, Laine, Jr., J. court
Harold Port Beaumont, Sekaly, Walter M. appointed, appellant. appointed, for Hanna, R. Atty., Tom Dist. and John Beaumont, DeWitt, Atty., D. Asst. Dist. Jim LOVILOTTE, Appellant, Earl James Vollers, Atty., McAn- State’s and David S. Austin, Atty., for the gus, Asst. State’s State. OPINION Court DOUGLAS, Judge. a conviction for appeals Lovilotte delivery assessed heroin. punishment years. His twenty-five
only contention that reversible prosecutor when the committed you know” in- a “did reputation witness a “have stead of could not disregard it. We overrule that judge to contention and affirm. Joseph Payne of the Calcasieu
Officer Department in Louisiana Parish Sheriff’s Deputies Duhon to Port Herbert drove from Lake Charles 9, 1974, with Lt. on October to meet Arthur Jerry Arthur Police Fontenot of Port *2 Department at Rose Hill where he was met Park. Officers Fontenot Her- and gave from Calcasieu Parish and He County Jefferson bert. Fontenot plastic the two working together packets, remaining had been on drug cases in two twenty dollar and one the area. bills ten dollar bill. got Duhon testified that he Upon Park, their arrival at trunk Rose Hill purposes for surveillance and Fontenot, protect Officers Herbert and Duhon Payne. equipped The trunk was searched him that he and his vehicle as was custom- open and close it from the ary before inside. attempt to make a case Duhon stated that he overheard the initial through the use agent. undercover Payne conversation between appellant and He had money or narcotics. After the and testified substantially the same as completed search was gave Fontenot him Payne did. Following the initial conversa- bills, four twenty dollar one ten dollar bill someone, tion he felt who he later deter- and two five dollar bills. Before Payne Payne voice, mined was because of his sit proceeded to Garage, Earl’s Duhon hid in and Payne stayed on trunk there trunk of Payne an automobile. drove it thirty Payne for about minutes. got then garage, parked, waited a minute and through into the car passenger back got out of the car. Moments later he was and they side for a conversed minute or approached by appellant whom he knew as afterward, Shortly two. heard the same previous “RoRo” because of his work in voice that he had heard earlier Payne when that area of Port Author. After a short agreed to purchase. make the The man conversation, appellant Payne if he up to the passenger’s walked side of the car “stuff”, wanted some which was street talk Payne and told “good that it was stuff.” dope, and Payne responded that he did. Payne He then heard count out the money Appellant told him he had “twenty- some pay Payne and him. and Duhon then re- papers” (twenty-five five cent dollars worth park. turned to the Immediately get- after heroin). Payne two; said he ap- needed ting out of the trunk Duhon Payne watched pellant said he had three Payne left. did give Fontenot papers the two of heroin he not want Appellant three. said it would had taken pocket. from his shirt take him about ten get minutes to it there went and into the service station next door Herbert following their ini- garage. meeting tial park at the he and Fontenot drove within two hundred feet of Earl’s Payne sat on trunk of the car and Garage and watched Payne while sang while he waited for some thirty min- parked there. Herbert related the same Appellant utes. then came out of the ser- sequence of Payne events as did concerning vice station and talked to two individ- other the arrival and what went on at the garage uals. Roosevelt up Scott drove and went thirty for some minutes. Herbert assisted inside the station appellant. Payne with Duhon out of the trunk and then watched recognized purchased Scott because he had Payne packets Fontenot the two from from him previous narcotics occasions. pocket. his shirt All of the inspect- officers While and were talking, Scott packets Payne placed ed the them in Payne got back in his car and carried on a a sealed envelope. with appel- conversation Duhon. Scott and couple lant talked a ap- minutes before Lt. Fontenot testified to the same facts pellant Payne’s walked back to car and regarding as the other officers did handed him plastic packages. two sealed meeting initial park. He then turn, Payne, gave appellant two twenty Payne searched gave and his car and him and dollar bills two five dollar Payne bills. one hundred dollars. His testimony was in put packages in his left shirt pock- substance the same as that of Herbert Appellant Payne et. told if he needed surveillance at the any more “stuff” let him Payne getting know. later the heroin and the balance of drove off returned to Rose Hill Park money Payne. may give, and the court meeting, seeing, ever denied Appellant reversible de- anyone fitting his Payne or
talking to day in On cross- scription question. quoted approval statement This of” Roosevelt he said he “knew (Tex.Cr. examination in Webber them or but saw neither of Scott language that broad App.1971). stated car on that date. He Will Scott’s *3 overruled expressly was car because Scott he knew Scott’s In Car that 757 537 S.W.2d ques of his. Then he admitted asking of such a was a customer the held that ey we drug dealing by heard of an instruction he had that tion citing nothing of Clark disregard question, but knew the of his to area (Tex.Cr.App.1973); to 469 pay any did not attention 500 S.W.2d he v. because (Tex.Cr.App. having Appellant admitted to talk. Ortiz the 753 Longoria v. 1973); danger- of a possession for convicted been State, 444 and White v. (Tex.Cr.App.1974), shoplifting in 1973. drug as well as ous examples (Tex.Cr.App.1969), as 921 S.W.2d reputation peaceful as a Appellant’s of the harmfulness cases wherein prior of at issue law-abiding citizen was made an cured asking question was improper stage proper of the trial. Then guilt the quoted from Carey In we an instruction. were asked of you questions heard” “have White: Moore, Sr., relative Walter “ improper ques- asking in ‘An error or convicted on differ- having been arrested testimony improper admitting in tion or following com- Then the ent occasions. or rendered may generally be question asked: of was plained of testi- by a such withdrawal (Prosecutor) you If known “Q. had disregard the mony and an instruction to incidents I have asked these about cases where it except in extreme same about, you or if had heard question or evidence is that appears them, you opin- be would still of of to inflame the minds clearly calculated a good defendant has that ion character as to is of such reputation?” withdrawing impossibility of suggest the following occurred: The impression produced ” Counsel) (Defense Your “MR. SEKALY: minds.’ Honor, question as object we to that complained question should not The definitely a assertion being direct now asked, but the error does not call been have these part of the State that Appellant admitted that a reversal. though wit- occurred even this events These covered been convicted twice. had has not heard of them. ness pro- questions heard you of the have two (Prosecutor) I withdraw DOYLE: “MR. In view of the evidence pounded to Moore. Your Honor. question, his admission of appellant’s guilt and convictions, asked, and the court’s instruction prior question was “THE COURT: improper question, to consider the withdrawn, not improper, it was it was reversible error is shown. any purpose.” it for consider do not is affirmed. for mistrial was overruled. A motion Parasco v. the rule in If ROBERTS, Judge, concurring. (1959), applied, still majority’s conclusion agree There the appellant would be correct. Sr., Moore, to Walter it was error ask Court held: repu- heard” you you “did know —have is asked “Whenever agree that the I also question; tation to an assertion of fact and amounts reversible. not another plies the commission of differ- I reach this result harmfulness majority. any than that of the ent route or failure answer holds majority in effect ques- such a to the rule of supra, and McNaul- is generally error, tion not reversible ty, supra, and I still adhere to it. may fact, be such rare cases. In the rule I would hold that asked of to the contrary. the witness here one of “excep- those (Tex. In Smith tional cases an instruction to [in which] Cr.App.1974), we discussed “have disregard can cure the Carey, error.” questions and unanimously stated supra, at 759 (concurring opin- that: ion). “Indeed, the mere improper- of an ly question asserting framed as a matter ODOM, J., joins in this concurrence. fact the defendant committed a specific act of misconduct is reversible Id.,
error.” citing, Webber v.
The more reasonable view concerning im-
properly framed “have heard” ques-
tions that Wharton v. 326, (1952): bemay “Some harmless and some may be Billy Ray ROGERS, Appellant, made by negative answer, whenever the is so stated that it amounts to an assertion of a fact under
the conditions here under discussion and implies the commission of another of- fense, it may be said that its harmfulness Court of the answer and sel- by any dom instruction which the court is jury.” (Emphasis
able to includ-
ed) 740, supra, at quoting, 317,
McNaulty v. 138 Tex.Cr.R. 987, 988-989. 757,
In Carey v.
(Tex.Cr.App.1976) I concurred in the over
ruling of the following language from Par
aseo v. 168 Tex.Cr.R. (1959):
“Whenever a is asked which
amounts to an assertion of fact
plies the commission of another harmfulness cannot be
answer or failure to or by any which the may give,
reversible error
I that such language felt was too broad
and that Parasco the instruction was improper question. to cure the
sufficient
Carey involved one of the “seldom” instanc-
es, Wharton, supra, see where an instruc-
tion cured the error of the mere improper question implied
commission of another offense. adhered