Bermudez v. State

504 S.W.2d 868, 1974 Tex. Crim. App. LEXIS 1468
CourtCourt of Criminal Appeals of Texas
DecidedFebruary 6, 1974
Docket46827
StatusPublished
Cited by29 cases

This text of 504 S.W.2d 868 (Bermudez v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bermudez v. State, 504 S.W.2d 868, 1974 Tex. Crim. App. LEXIS 1468 (Tex. 1974).

Opinion

OPINION

ROBERTS, Judge.

The appellant was convicted of the offense of assault to murder with malice. The jury assessed his punishment at IS years’ imprisonment.

The evidence reflects that the offense occurred on August 28, 1971. The complaining witness and some of his friends were standing around a vehicle in a shopping center parking lot. The witnesses testified that the appellant, in the company of others, drove by in a car, stopped, and made some provocative remarks. The witnesses told him to go away. In response, the appellant displayed a pistol and fired several times. One of the bullets struck the complaining witness in the leg.

Two days later, the complaining witness recognized the appellant at a shopping center and called the police, who, after receiving a description of the appellant, went to his home and arrested him.

The appellant first contends that reversible error occurred when the trial court made a comment on the weight of the evidence which adversely affected his alibi defense. The record reflects the following colloquy between the court and the defense witness, which occurred immediately after the witness took the stand:

“The Court: You look faintly amused by this. What is it ?
“The Witness: Nothing.”

*870 Questions asked by appellant’s counsel indicate that the witness was smiling, but meant no disrespect for the court.

The statement was not, in our opinion, a comment on the weight of the evidence, but was, rather, an effort by the court to impress upon the witness the serious nature of the proceedings of which the witness was a part. Under the circumstances, the statement was not such a one as would prejudice appellant’s rights or benefit the State, and is not grounds for reversal. See Haynes v. State, 482 S.W.2d 191 (Tex.Cr.App.1972) and Byrd v. State, 421 S.W.2d 915 (Tex.Cr.App.1967).

In a related ground of error, appellant urges that the court should have sustained his objection to a question directed to the same witness by the prosecuting attorney. The statement of facts shows the following:

“Q Let me ask you, do you think all this is a pretty humorous thing ?
“A No, sir.
“Q You and your friends have been out there in the hall laughing for the last two hours, haven’t you ?
“Defense Counsel: I object to this.”

The witness subsequently admitted, in response to other questions to which no objection was posed, that he and some other witnesses had been laughing while they were in the hall.

We note first that appellant’s was a general objection which fails to preserve error. See Williams v. State, 491 S.W.2d 142 (Tex.Cr.App.1973), and Myers v. State, 491 S.W.2d 412 (Tex.Cr.App.1973). Additionally, four similar questions were asked of the witness without objection. This also fails to preserve error. See Crestfield v. State, 471 S.W.2d 50 (Tex.Cr.App.1971) and Burns v. State, 470 S.W.2d 867 (Tex. Cr.App.1971).

Appellant next urges that he should have been granted a mistrial when the arresting officer, who had testified that he had known appellant for two years, was asked by the prosecuting attorney, “I assume that is not on a social basis, is it?” The record reflects that appellant’s objection was sustained and that the jury was instructed to disregard the remark. Under the circumstances, this was sufficient to cure the error. See Holland v. State, 481 S.W.2d 410 (Tex.Cr.App.1972) and Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App.1972).

The appellant also urges that the court erred in overruling his objection to a leading question directed to a State’s witness by the prosecuting attorney. The witness was asked, “Now as you were standing there talking, did you notice a Chevelle come near the location?” It was a Che-velle automobile from which the shots were fired; however, that fact had been securely established by other testimony. This Court has often observed that the mere asking of a leading question will rarely constitute reversible, error. There was none here. See Ortega v. State, 462 S.W. 2d 296 (Tex.Cr.App.1970).

The remainder of appellant’s grounds of error relate to occurrences at the punishment stage of his trial. He first complains that the court erred in overruling his objection to an unresponsive answer elicited during the cross-examination of a State’s witness. Appellant’s counsel had asked the witness, a police officer, whether any witnesses other than police officers were present to testify as to appellant’s bad character. The witness answered: “No, they declined because of their . . .”, at which point he was interrupted by appellant’s objection. Appellant urges that the remark was highly prejudicial since it conveyed to the jury the impression that appellant’s neighbors and others would not come to court.

We fail to see how appellant can have been injured by this uncompleted remark. It conveyed no information beyond the fact that some non-police witnesses declined to *871 appear as witnesses for the State. It certainly conveyed no information regarding the reasons for their refusal to appear. There was no error.

In a related ground of error, the appellant contends that he should have been granted a mistrial when another police officer stated, in response to defense counsel’s request that he name some of appellant’s neighbors, that he could not do so . . for fear of reprisal.” Objection was promptly sustained and an instruction to disregard the remark was given to the jury. This sufficiently cured the error. See Cazares v. State, 488 S.W.2d 110 (Tex.Cr.App.1972); Thompson v. State, 486 S.W.2d 343 (Tex.Cr.App.1972); and Holland v. State, supra.

Appellant also argues that the prosecuting attorney circumvented the court’s ruling on the improper response discussed above, by indirectly inquiring of the same witness about reprisals against those who testified.

The record reflects the following:

“Q Now, officer, did I, this morning, discuss with you the different people you have talked to about Ber-mudez ?
“A Yes.
“Q And did we discuss the point about advisability of naming these people or trying to get them here in person?
“A Yes.

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Bluebook (online)
504 S.W.2d 868, 1974 Tex. Crim. App. LEXIS 1468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bermudez-v-state-texcrimapp-1974.