Bonier v. State

738 S.W.2d 726, 1987 Tex. App. LEXIS 8223
CourtCourt of Appeals of Texas
DecidedSeptember 3, 1987
DocketNo. C14-86-228-CR
StatusPublished
Cited by3 cases

This text of 738 S.W.2d 726 (Bonier 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
Bonier v. State, 738 S.W.2d 726, 1987 Tex. App. LEXIS 8223 (Tex. Ct. App. 1987).

Opinions

OPINION

DRAUGHN, Justice.

Appellant Lincoln Bonier, Jr. was convicted by a jury of first degree murder and sentenced to thirty-five years confinement in the Texas Department of Corrections. Appellant asserts four points of error on appeal objecting to certain questions and jury arguments by the prosecutor. We affirm.

Appellant’s first point of error attacks the trial court’s denial of his motion for mistrial made during the guilt/innocence phase of the trial. Defense counsel called Lester Jones as a fact witness. The prosecutor began cross-examination of Mr. Jones by asking him if he had been drinking or was under the influence of any type of intoxicant or drug. The witness responded that he had not been drinking on the day of trial and that he never used drugs. Appellant’s counsel objected and requested that the jury be instructed to disregard the questions. The court sustained the objection and granted the requested instruction. Appellant moved for a mistrial which the court denied.

The prosecutor’s questions were not clearly calculated to inflame the minds of the jury nor were they of such a character that any negative impression could not be withdrawn from the minds of the jury. Hooten v. State, 689 S.W.2d 328, 329-30 (Tex.App.—Fort Worth 1985, no pet.); Crawford v. State, 603 S.W.2d 874, 876 (Tex.Crim.App.1980). Any error was cured by the court’s instruction to disregard. Thomas v. State, 578 S.W.2d 691, 695 (Tex.Crim.App.1979). Appellant’s first point of error is overruled.

Appellant contends in his second point of error that the trial court erred in overruling his objections to the prosecutor’s use of “have you heard” questions during cross-examination. We disagree.

When a witness testifies on direct that appellant’s reputation is good, the state may properly inquire whether the witness has heard hearsay, which is inconsistent with his opinion. Brown v. State, 477 S.W.2d 617, 619-620 (Tex.Crim.App.1972). Error occurs only when the form of the question implies the incident in fact took place. Maxwell v. State, 595 S.W.2d 126, 128 (Tex.Crim.App.1980); Nerio v. State, 672 S.W.2d 253, 255 (Tex.App.—Beaumont 1984, no pet.). Here the questions were in the proper form and did not assert that the incident referred to in the questions occurred. Appellant’s second point of error is overruled.

In his third and fourth points of error, appellant attacks the jury argument of counsel for the state. He asserts that the trial court erred in overruling appellant’s objections to the prosecutor’s jury argument which concerns a fictitious letter-to-the-deceased argument and an alleged attack on defense counsel. We are unpersuaded by appellant’s arguments.

During the final jury argument, the prosecutor couched a portion of his jury argument in the form of a ficticious letter that he might have written to the deceased after her death. Because of the nature of this argument, the portion regarding the imaginary letter will be repeated in its entirety. “MR. ANDERSON: I thought about what I would do if I was able to write a letter to Sandra Alley and tell her what happened. [728]*728What has happened here since we have been here, Ms. Alley.

“MR. HOWARD: Judge, I’m going to object to this as being highly prejudicial.

"THE COURT: Overruled.

“MR. ANDERSON: I think I would say Dear Sandra, we are in trial on your case now. I know that you can’t be with us here to testify. I wish you could. I know what has happened to you and I am representing you and I hope I can do a good job.

“MR. HOWARD: Judge, he is out of the record, first of all.

“THE COURT: Overruled.

“MR. HOWARD: Secondly, he is trying to inflame the minds of the jurors and it’s prejudicial.

“THE COURT: Overruled, Counsel, this is closing argument.

“MR. ANDERSON: Sandra, I presented the facts as best I could. I called the witnesses to this case. Obviously, you are our eyewitness and you can’t be here. I had your sister, Wanda, come up, the one you were going to go out with that night. She testified that, yeah, you had used some bad words before, you maybe called somebody bald-headed and whatever else. She testified that y’all were going to go out that night. She heard you and Lincoln arguing. She couldn’t hear what you were saying so she got up closer. She could see through a window here. We drew a diagram of your house. It showed the windows of the bedroom where you died. And she could see not very well, but she said she saw what she thought was some human legs, she thought they were Lincoln’s. She heard the conversation more clearly as she leaned over the fence. I guess y’all were yelling pretty good. She heard you say go ahead and shoot me, Lincoln, if you are going to. Sandra, believe me, that was the wrong thing to say. Because he took you up on it. And then she heard you screaming and say, no, Lincoln, no.

“MR. HOWARD: Judge, may I have a running objection on this?

“THE COURT: Yes, sir.

“MR. ANDERSON: And then she heard the first shot. And I got her to count, Sandra, and she said the second shot was about four seconds later. And I don’t know which one took your life, but one of them did.

“I then called a guy named Earl Winston and the Defense said that Earl is a liar and a cheat and a thief and a drunk and every other kind of thing, I don’t know. I know that Earl is a friend of the defendant and Earl didn’t want to be up here testifying and did because he made a statement to somebody who told the police and they finally tracked him down. And I thought Earl was real credible, Sandra, because he didn’t have to say he was in jail. He didn’t have to say anything. But he did. And I don’t think he was looking for acceptance as Defense would have you believe. Sandra, I think he was just trying to tell the truth. And he told about something you probably know about. That your husband said he could kill somebody and get away with it and he knew a dude he could talk to and there wasn’t no jury in the world that would give him any time. That he knew how to talk and make it look like self-defense. And you know, Sandra, it was funny because that was kind of consistent with the way the room was found. The sheets were off the bed and there was a knife laying there so everybody could see it. It looks like an attempt that Lincoln may have made to make it look like self-defense.

“Well, we called Mr. Bailey, your boss, and he told us about the fight you and Lincoln had that day and Lincoln telling you to get your butt home. Lincoln said it never happened. He said he was drinking with Mr. Bailey. But Mr. Bailey doesn’t really have any reason to lie and if anybody is going to shut down his business, it’s going to be all those people that the Defense called in here. There is a lot more of them than there are of us, Sandra.

“And L.C. Jones, when he was on the stand, said y’all would fight sometimes but, also, said that Lincoln asked you why y’all were fighting, who loaded this gun.

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Bluebook (online)
738 S.W.2d 726, 1987 Tex. App. LEXIS 8223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonier-v-state-texapp-1987.