Bowman v. State

782 S.W.2d 933, 1989 Tex. App. LEXIS 3077, 1989 WL 153858
CourtCourt of Appeals of Texas
DecidedDecember 21, 1989
DocketNo. C14-89-567-CR
StatusPublished
Cited by4 cases

This text of 782 S.W.2d 933 (Bowman 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
Bowman v. State, 782 S.W.2d 933, 1989 Tex. App. LEXIS 3077, 1989 WL 153858 (Tex. Ct. App. 1989).

Opinion

OPINION

ELLIS, Justice.

Appellant, Delbert Lewis Bowman, appeals his judgment of conviction for the offense of burglary of a motor vehicle. Texas Penal Code Ann. § 30.04. (Vernon 1989). The jury rejected appellant’s not guilty plea and, upon finding the two enhancement paragraphs in the indictment to be true, assessed his punishment at confinement for life in the Texas Department of Corrections. We affirm.

Appellant brings three points of error on appeal. In his first point of error, appellant submits reversible error was committed by the prosecutor in arguing to the jury, over objection of defense counsel, facts concerning a prior conviction used for enhancement of punishment. In his second point of error, appellant asserts reversible error was committed by the prosecution in its final argument at the punishment phase which constituted an invitation for the jury to consider the parole law in assessing punishment. In his third point of error, appellant argues reversible error was committed by the prosecutor in voir diring the jury panel as to the range of punishment applicable in an habitual offender case thus jeopardizing appellant’s presumption of innocence.

In his first point of error, appellant submits it was reversible error for the prosecutor to argue facts relating to a prior conviction during closing argument on punishment. The portion of the prosecutor’s closing argument with which appellant specifically takes issue is as follows:

STATE: If you look at it right now he has got at least five victims. All of these were victims of crimes. Every single one of them, somebody was hurt. Was it their sense of well-being? Was it physical? Was it both? He stole, burglary, all of these things add victims. Now we are on his third one. Robbery by assault, burglary, all of these things add victims. People whose lives were affected by that man. People who didn’t [936]*936feel safe to go to their car because they didn’t know what was going to happen. People who didn’t feel safe because they got beat up when they had their property stolen from their—
DEFENSE COUNSEL: Objection. That calls for — facts not in evidence.
COURT: Overruled.

Appellant correctly argues that in introducing evidence of prior convictions, the State is limited to the fact of conviction and is prohibited from showing the details of the offense. Johnson v. State, 650 S.W.2d 784 (Tex.Crim.App.1983) citing Mullins v. State, 492 S.W.2d 277 (Tex.Crim. App.1973). Johnson is inapposite to the facts of the instant case. In Johnson, the claimed error occurred when the evidence of the prior offense was first introduced. Unlike Johnson, the claimed error in the case before us occurred during argument, after the evidence of appellant’s prior robbery by assault conviction had been properly introduced into evidence. Once the evidence of the prior conviction was introduced into evidence, a reasonable deduction can then be made therefrom. Medina v. State, 743 S.W.2d 950, 959 (Tex.App.—Amarillo 1983, pet. ref’d).

In order to fall within the realm of proper jury argument, the argument must encompass one of the following areas: (1) summation of the evidence presented at trial; (2) reasonable deduction drawn from the evidence; (3) answer to the opposing counsel’s argument; (4) a plea for law enforcement. Gaddis v. State, 753 S.W.2d 396, 399 (Tex.Crim.App.1988); Albiar v. State, 739 S.W.2d 360, 362 (Tex.Crim.App. 1987); Todd v. State, 598 S.W.2d 286, 296-7 (Tex.Crim.App.1980). Further, during final argument, counsel are allowed wide latitude in drawing inferences from the evidence, provided those inferences are reasonable, fair, legitimate and offered in good faith. Gaddis, 753 at 398. The prosecutor’s statement, “People who didn’t feel safe because they got beat up when they had their property stolen ...” was based upon evidence of appellant’s prior robbery by assault conviction which was clearly inside the record. We find the prosecutor’s reference to people who “got beat up” to be a reasonable and legitimate deduction from the evidence of appellant’s robbery by assault conviction. Appellant’s point of error one is overruled.

In his second point of error, appellant argues that the prosecutor’s argument improperly invited the jury to consider parole law during punishment deliberations and thereby constituted reversible error. In the first instance, we note that appellant’s complaint is not supported by a contemporaneous objection at trial. The general rule presumes that the failure to object to impermissible jury argument waives any error on appeal. Tex.R.App.P. 52(a); Romo v. State, 631 S.W.2d 515 (Tex. Crim.App.1982). There is an exception to the waiver rule where the State’s argument is so egregiously prejudicial that no instruction to disregard could possibly cure the harm. Losanda v. State, 721 S.W.2d 305 (Tex.Crim.App.1986). We find in the instant case' that the prosecutor’s comments did not have such a prejudicial effect that they could not have been cured by an instruction to disregard. Nevertheless, we will address appellant’s complaint as to the alleged improper jury argument of the prosecutor on the merits. In support of his argument, appellant points to the prosecutor’s repeat references to the fact that appellant had previously received a life sentence for a 1976 conviction for burglary of a motor vehicle and 13 years later committed the exact same offense which sent him to the penitentiary. Appellant refers this court to multiple comments in the record where the prosecutor virtually tells the jury that a life sentence for this appellant means, in effect, 13 years. The following excerpts are typical of the complained of comments:

I can see in many of you, I think your minds saying well, if only 13 years ago if he was given a life sentence what good is it going to give (sic) him one now?
[937]*937... Then on April 10, 1976, he again committed the offense of burglary of a motor vehicle. And in October of 1976, his punishment was assessed by a jury at life. Then a mere 13 years later, did he learn? Was he rehabilitated? Was he deterred? No. What did he do? He went out there an (sic) he broke into Mr. Fonseca’s car .and he stole that black box. Well, you know, in a way he’s right. Maybe it’s not that heinous a crime to steal a black box from a car. Maybe we should just let him go and say, Mr. Bowman, we are going to give you that second chance again for the fifth time and we’re going to give you minimum ...
... I ask you to take into consideration not only the facts in this case but also the facts of Mr. Bowman’s life. As represented in these four documents. He spent much of his adult life in the penitentiary.

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Bluebook (online)
782 S.W.2d 933, 1989 Tex. App. LEXIS 3077, 1989 WL 153858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowman-v-state-texapp-1989.