Bullard v. State

706 S.W.2d 329, 1986 Tex. App. LEXIS 12030
CourtCourt of Appeals of Texas
DecidedJanuary 30, 1986
DocketNo. A14-84-855-CR
StatusPublished
Cited by10 cases

This text of 706 S.W.2d 329 (Bullard 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
Bullard v. State, 706 S.W.2d 329, 1986 Tex. App. LEXIS 12030 (Tex. Ct. App. 1986).

Opinion

OPINION

SEARS, Justice.

Appellant was convicted by a jury of the murder of Jerome Johnson. The jury assessed punishment at fifteen years’ confinement in the Texas Department of Corrections. In his appeal appellant asserts eleven grounds of error. We affirm the conviction.

Appellant claims in his first ground of error that the evidence was insufficient to support his conviction-. He complains specifically that he was never positively identified as the person responsible for Johnson’s death. Johnson was stabbed to death on March 27, 1984, in the parking area of Eve’s, a nightclub on Houston’s north side. The state called eight witnesses to the crime. The first, Barry Traver, was a patron of a club neighboring Eve’s. He testified he saw a man in the parking area with a knife in his hand standing over the victim saying, “Kill the son-of-a-bitch.” This man had dark hair and wore a blue shirt. Another man with blond hair and a tan shirt was holding the victim down. The witness saw the dark-haired man with the blue shirt enter the passenger side of a "car parked at the scene. The blond man got in the driver’s side, and, after fighting off on-lookers, the two drove away.

Sam Reina, part owner of two clubs neighboring Eve’s, testified that he saw a man with dark hair on the passenger side of the car. This man had longer hair than the driver and was smaller in build than the driver.

Thomas Edwards, part owner of two clubs neighboring Eve’s, said the passenger of the car wore a blue shirt and had longer, darker hair than the driver. The passenger was more slender than the driver.

Walter Randall Sykes, the manager of Eve’s, testified that appellant wore a blue shirt that evening and had long hair. He described appellant’s hair as lighter than his companion’s, Davis Renfro, and sun-streaked.

[331]*331Sue Clinton, a waitress at Eve’s, could not recall the color of appellant’s shirt, but she knew Renfro’s shirt was light-colored. She testified appellant had long, dark blond hair, but that Renfro’s hair was darker.

Gena Rhodes, a schoolmate of appellant and a friend of Renfro, was with appellant and Renfro at Eve’s on the night of March 27, 1984. She stated that she did not remember the color of appellant’s shirt, but she knew Renfro’s was light. Appellant’s hair was brown and shoulder-length. She testified that later that evening appellant “said something about he stabbed someone.”

Alicia Cramer, a patron of a neighboring club, testified she saw the participants arguing in the vehicle prior to the stabbing. She testified Johnson was in the middle of the front seat, between the driver and the passenger, when the passenger pulled him out and started hitting him. The driver then joined in the assault which culminated with the passenger stabbing Johnson. The passenger then punched the witness in the face as she attempted to intervene. She then lost consciousness and her further recollections are not clear.

Finally, Thomas Tullos, the doorman at Eve’s and a long-time friend of appellant, testified appellant wore a blue shirt and had lighter, shoulder-length hair. He was of a smaller build than Renfro. Appellant was the passenger in the car at the scene and carried a buck knife on his person most of the time.

The standard for review in both direct and circumstantial evidence cases is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984) (en banc) (opinion on motion for rehearing). Moreover, the evidence will be reviewed in the light most favorable to the verdict or judgment. Id. The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981). It is within the jury’s province to accept one version of the facts and reject another. Id. Viewing all the evidence in the light most favorable to the verdict in this case, we hold that the jury could reasonably have found the evidence sufficient to prove beyond a reasonable doubt that appellant was guilty of the murder. Accordingly, we overrule appellant’s first ground of error.

In his second ground of error, appellant complains that the trial court erred in allowing the prosecutor to comment on appellant’s failure to testify. During jury argument at the punishment phase of trial, the following exchange took place:

MR. MC CLELLAN [THE PROSECUTOR]: During this trial you know that the defendant has been given all those protections. He has been given the presumption of innocence, the right to trial by jury. He has been given the right to be represented by competent counsel. He has been given the right not to testify and not to have that held against him.
MR. PATTERSON [DEFENSE COUNSEL]: Object to the comments of this defendant’s right not to testify.
THE COURT: That will be overruled.

It is now axiomatic that the state may not comment on the defendant’s failure to testify. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). However, the prosecutor’s argument in this case was merely a recitation of some of a defendant’s rights at trial, not a comment on appellant’s failure to testify. The state’s argument was not improper. Appellant’s second ground of error is overruled.

In his third ground of error, appellant argues that the trial court erred in permitting the prosecutor to question a witness at the punishment phase of trial as to the amount of appellant’s bond, and in comparing that amount with bonds in other murder cases. The record reflects the jury heard testimony that appellant’s bond was fifty thousand dollars, that the standard bond for murder was “around ten thousand [332]*332dollars” and that sixty percent of the bonds made for a murder charge were ten thousand dollars or less.

Appellant contends that permitting this testimony allowed the jury to speculate as to why appellant's bond was so high. He argues that this speculation was prejudicial to him. The state responded by saying the objection at trial was that the amount of the bond was immaterial and irrelevant. The state would have us overrule the ground of error as not preserved since the error on appeal is different from the error alleged at time of trial. The state further argues that any evidence that is relevant to mitigate punishment is admissible. We agree with appellant that the question was improper and allowed the jury to speculate on matters not in evidence. It was asked in an obvious attempt to prejudice the jury; however, we do not find that the jury was prejudiced or that appellant was harmed. Fifteen years is not an excessive punishment for the offense of murder; therefore, we find the error to be harmless. See generally Prior v. State, 647 S.W.2d 956 (Tex.Crim.App.1983). Ground of error three is overruled.

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Bluebook (online)
706 S.W.2d 329, 1986 Tex. App. LEXIS 12030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bullard-v-state-texapp-1986.