Amis v. State

910 S.W.2d 511, 1995 Tex. App. LEXIS 507, 1995 WL 82935
CourtCourt of Appeals of Texas
DecidedFebruary 28, 1995
DocketNo. 12-92-00380-CR
StatusPublished
Cited by15 cases

This text of 910 S.W.2d 511 (Amis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amis v. State, 910 S.W.2d 511, 1995 Tex. App. LEXIS 507, 1995 WL 82935 (Tex. Ct. App. 1995).

Opinion

HADDEN, Justice.

A jury convicted William Joseph Amis, Jr. (“Appellant”) of murder and assessed punishment at 20 years confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant raises nine points of error on appeal. We will affirm.

The evidence shows that Judge David Brown (“the deceased”) was the attorney for Appellant’s father, William Amis, Sr. The deceased had power of attorney for Appellant’s father and set up a trust for his assets. Over a period of time, Appellant began to distrust the deceased’s handling of his father’s estate so he obtained guardianship over his father. The day after Appellant secured guardianship, the deceased visited Appellant at his father’s home. Appellant told the deceased that he had obtained the guardianship and ordered him to leave. After a brief scuffle, Appellant took a gun out of his pocket and shot the deceased, who was unarmed at the time. All of the four bullets in the gun hit the deceased. The shooting rendered Brown a quadriplegic, and he died about 2½ years later from complications from the wounds.

In his first point of error, Appellant asserts that the trial court erred in overrul[514]*514ing his objection to the State’s opening statement. At trial, the State made the following assertions:

Are we going to bring you all the witnesses that have anything at all to do with this case? Are you going to bring all of the evidence in this case? I’m just going to seek justice.

Appellant argues, as he did at trial, that the prosecutor’s statement placed a higher mantle on the State and constituted a strike at defense counsel. We disagree.

Texas Code of Criminal Prooedure art. 2.01 states, in pertinent part, as follows:

It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.

(Emphasis added.)

Clearly, the prosecutor’s statement was a reference to this statutory duty and does not constitute error. It did not attack defense counsel, nor did it imply that the defense would engage in unethical conduct to prevent a conviction. Cf Lewis v. State, 529 S.W.2d 533, 534 (Tex.Cr.App.1975) (State’s jury arguments that “I have taken a solemn oath to God to seek justice ... No such oath bears on one of these attorneys” and “If, assuming this man is guilty, do they want the truth in here before you?” constituted strikes at -defense counsel); Boyde v. State, 513 S.W.2d 588, 591 (Tex.Cr.App.1974) (State’s argument that “you will never find me defending criminals in this or any other County. You will never find me accepting stolen money, stolen merchandise as a fee” constituted error).

Moreover, the argument was proper as an answer to opposing counsel. During voir dire, defense counsel asked the jury panel the following question:

How many of you believe that to play fair, the State ought to bring in all the testimony about the case so when they get through, you know what’s happened? Make sense? If you do, raise your number.
Their burden. They’ve got a duty.
Let me ask it another way. Do y’all expect the State to play fair with you? (Emphasis added.)

Jury argument is proper if it falls into one or more of the following general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to the argument of opposing counsel; and (4) pleas for law enforcement. McKay v. State, 707 S.W.2d 23, 36 (Tex.Cr.App.1985), cert, denied, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986). We find these principles equally applicable to a remark in opening statement which has been invited by defense counsel’s voir dire comments. Appellant invited the State’s argument by focusing the jury panel’s attention upon the State’s duties at trial. The State’s opening remarks constituted a response to defense counsel’s statements; therefore, the remarks do not constitute error. For these reasons, point of error number one is overruled.

In point number two, Appellant challenges another portion of the State’s opening remarks. Specifically, he takes issue with the following assertions:

If a party calls a witness, they cannot ask leading questions to that witness. Cross-examination is the time for leading a witness. I’m not going to sponsor witnesses in this courtroom whose testimony I won’t vouch for.

Appellant claims that the State im-permissibly attempted to bolster its own witnesses through these statements. As a general rule, it is improper for a prosecutor to vouch for the credibility of a witness during argument. Chapman v. State, 503 S.W.2d 237, 238 (Tex.Cr.App.1974); Carter v. State, 650 S.W.2d 843, 847 (Tex.App.—Houston [14th Dist] 1982), af'd, 650 S.W.2d 793 (Tex.Cr.App.1983). However, a remark vouching for the credibility of the witness is not reversible if it is invited by defense argument. Chapman, 503 S.W.2d at 238; Manuel v. State, 782 S.W.2d 335, 337 (Tex.App.—Houston [1st Dist.] 1989, pet. ref'd); Carter, 650 S.W.2d at 843.

In the instant case, the prosecutor’s remarks were invited by defense counsel’s statements about the witnesses during voir dire. He told the jury panel personal facts about Appellant and his family, explaining [515]*515that they lived in Tyler and attended First Baptist church. He stated that “we expect a whole ton of folks to testify,” and that “we’re going to have some judges, we would assume, of people with the judiciary mentioned throughout the trial.” After discussing the witnesses, he questioned the panel about their beliefs that the State would “play fair” with them. Clearly, the State’s opening remark was invited by defense counsel’s comments about the witnesses and about the State’s treatment of the evidence.

Even if the statement were improper, any error was harmless beyond a reasonable doubt. See Tex.R.App.P. 81(b)(2). First, the prosecutor’s statement was not harmful since it was made during opening statement, rather than closing argument. Cf. e.g., Menefee v. State, 614 S.W.2d 167, 168 (Tex.Cr.App.1981) (erroneous statement about eye-witness’ credibility made during jury argument). Statements occurring during final argument are uniquely compelling since they are the last thing that the jury hears before they retired to deliberate. Consequently, an improper statement made early in the trial would have less of an impact on the jury than the same statement made during closing argument. See e.g., Jackson v. State, 726 S.W.2d 217, 221 (Tex.App.—Dallas 1987, pet. ref'd) (statement made during voir dire had less impact than closing argument).

Second, the prosecutor’s statement was harmless since it was less direct and emphatic than those arguments cited by Appellant. The prosecutor did not refer to the witnesses individually, nor did he detail the reasons for their credibility.

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910 S.W.2d 511, 1995 Tex. App. LEXIS 507, 1995 WL 82935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amis-v-state-texapp-1995.