Bias v. State

937 S.W.2d 141, 1997 Tex. App. LEXIS 15, 1997 WL 5825
CourtCourt of Appeals of Texas
DecidedJanuary 2, 1997
Docket01-95-00277-CR, 01-95-00278-CR
StatusPublished
Cited by26 cases

This text of 937 S.W.2d 141 (Bias 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
Bias v. State, 937 S.W.2d 141, 1997 Tex. App. LEXIS 15, 1997 WL 5825 (Tex. Ct. App. 1997).

Opinion

OPINION

TAFT, Justice.

Appellant, James Bias, was charged in separate indictments with two aggravated robberies alleged to have been committed on the same day. The cases were consolidated for trial. A jury found appellant guilty as charged in both cases and assessed punishment at 15- and 30-years confinement, respectively. A fine of $500 was also assessed in each casé. We address whether any error in unobjeeted-to prosecutorial argument is preserved for review and the effect of the change in the law that allows an affirmative finding of a deadly weapon to be made against a party to an offense. We affirm.

Facts

On June 2,1994, appellant and three other men, each possessing a gun, robbed Thi Lan *143 Vo and her husband at a grocery store they owned. 1 One of the robbers hit Thi Lan Vo in the head after ordering her to lie on the floor. One fired a shot striking a book near Vo as she lay on the floor. Another gunman fired a shot in the cooler, but no one was struck. Three of the gunmen, including appellant, kicked Vo’s husband upon discovering a gun in his pocket. At one point appellant ordered one of his accomplices to shoot Vo’s husband. However, they allowed him to stand up so that he could open the cash registers for them. Appellant struck him with a gun during this process. The fourth robber had a long gun and stood by the door.

Later that day, appellant and two other gunmen robbed Lawrence Muras, an assistant manager at a Price Buster’s food store. One of appellant’s accomplices approached Muras and placed a shotgun in his back and demanded money. At one point two gunmen pointed a shotgun and a pistol at Muras’ head, threatening to shoot him. As his accomplices gathered the money, appellant placed a gun to the head of the security guard, pushed him to the ground, and placed his knee in the guard’s back. Appellant threatened to pull the trigger if the guard did not give him money. Appellant struck the guard in the head with the gun and took $50 from the guard’s pocket. Before leaving, appellant brandished his gun and threatened to “bust a cap” on Muras.

Voluntariness Findings

In his first point of error, appellant contends the trial court erred in failing to enter an order stating its conclusions as to the voluntariness of appellant’s confession. See Tex.Code Crim.ProcAnn. art. 38.22 § 6 (Vernon 1981) (requiring trial court to make such findings).

Supplementation of the appellate record with these findings has rendered this point of error moot. Gonzales v. State, 807 S.W.2d 830, 832 (Tex.App.—Houston [1st Dist.] 1991, pet. ref'd). Accordingly, we overrule appellant’s first point of error.

Prosecutorial Argument

In his second and third points of error, appellant contends he was denied his right to a fair trial and he suffered irreparable harm because the prosecutor engaged in four improper jury arguments.

The parties agree that proper jury argument falls into four areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973).

In point two, appellant complains of the following prosecutorial argument at the punishment stage of trial:

You’ve got to protect society. And I’m going to ask you to send him away for life and you say gosh, that seems like a long time. You don’t know what the parole board is going to do, how long they are going to keep him off the street. You can’t know what the legislature in Austin is going to do.

Appellant’s objection, based on the trial court’s charge not to consider parole laws, was sustained and the jury was instructed to disregard. However, the trial court denied appellant’s request for a mistrial.

Ordinarily, remarks concerning parole laws are not permitted. See Walker v. State, 859 S.W.2d 566, 569 (Tex.App.—Waco 1993, pet. ref'd). They are admissible, however, when answering opposing counsel’s previous comments. See Franklin v. State, 693 S.W.2d 420, 429 (Tex.Crim.App.1985); see also Vigneault v. State, 600 S.W.2d 318, 329 (Tex.Crim.App.1980).

During closing argument, counsel for appellant initially mentioned early release:

The law also tells you whatever time you assess, if you assess time he would have to do half of it before he’s even eligible, even eligible for probation [sic].

Appellant opened the door to parole argument, thus inviting the prosecutor to answer. *144 See Walker, 859 S.W.2d at 569. The prosecutor’s reference was, therefore, proper because it was invited. Even if the argument were error, however, the trial court’s prompt instruction to disregard cured it. See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.1987).

Therefore, we overrule appellant’s second point of error.

In his third point of error, appellant complains of three more prosecutorial arguments during the punishment stage. Appellant groups them under one point of error because appellant claims they all constitute improper attempts to induce the jury to punish appellant for being a criminal generally.

The first complaint concerns the prosecutor’s statement that appellant enjoyed committing crime. Appellant claims there was no testimony supporting it. Appellant objected at trial that the argument was completely outside the record and speculation on the part of the prosecutor. The trial court overruled appellant’s objection.

To place the argument in context, the prosecutor was summarizing appellant’s life of crime, beginning when he was 14 years old. Appellant began with unauthorized use of a motor vehicle and, three months later, car theft. At age 16, he began committing aggravated robberies with a deadly weapon. The prosecutor asked the jury to consider the tattoos on appellant’s arms and whether the pump shotgun told the jury that appellant enjoys committing crime.

Prosecutorial argument that a defendant enjoys committing crime has been upheld as a reasonable deduction from the evidence. See Bellah v. State, 641 S.W.2d 641, 644 (Tex.App.—El Paso 1982), aff'd, 653 S.W.2d 795 (Tex.Crim.App.1983) (evidence revealed an unprovoked, brutal assault involving numerous stab wounds and the defendant bragged of his crime and contemplated further killings); Olivarri v. State,

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Bluebook (online)
937 S.W.2d 141, 1997 Tex. App. LEXIS 15, 1997 WL 5825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bias-v-state-texapp-1997.