Elizondo v. State

545 S.W.2d 453

• Court: Court of Criminal Appeals of Texas
• Decided: January 19, 1977
• Docket: 51743
• Status: Published

Opinions

OPINION

GUPTON, Judge.

The offense is delivery of heroin under the Controlled Substances Act; the punishment, assessed by the jury, 99 years.

In the light of our disposition of this case, a detailed recitation of facts is not necessary. Gerald Howard, a Department of Public Safety narcotics agent, testified that he was working undercover in the Midland-Odessa area on April 4, 1974. He went to appellant’s home accompanied by Elmer Don Culp, a heroin addict and paid informer. Culp knew appellant, and after introductions, the heroin purchase was made. Howard testified that he purchased the heroin, whereas Culp and appellant both testified that the purchase was made by Culp and that the delivery was made to Culp.

Due to the conflict in testimony among the three main witnesses, Culp’s credibility, bias, interest and motive became issues during the trial. Tom Barker, an investigator for the district attorney’s office, testified that prior to trial he had interviewed Culp in jail at which time Culp stated “that he [presumably the defense counsel] had put the heat on him . . . and he was afraid he was going to have to lie”.

The district attorney then took the stand and testified that while interviewing Culp the investigator had telephoned the district attorney at home. The prosecutor stated that he heard Culp say that “he would not tell us [the district attorney’s office] what he was going to testify to until he had an opportunity to talk to the man who had subpoenaed him.”

Appellant presents eight grounds of error. Since we have concluded that the case must be reversed and remanded due to improper jury argument, we will discuss only grounds of error one and two. Appellant’s first ground of error alleges that the trial court committed reversible error when it overruled appellant’s objection to the prosecutor’s argument that the jury had to believe the prosecutor and other witnesses. In his second ground of error appellant asserts that the trial court committed reversible error when it overruled appellant’s objection to the prosecutor’s statement that “You just don’t pay me enough to try to come in and convict an innocent person.”

In his closing argument to the jury at the guilt-innocence stage, the district attorney said:

“[DISTRICT ATTORNEY]: I want to, first of all, start off and tell each and every one of you one thing. This case boils down to this, you either believe the agent, you believe my investigator, you believe me, or you believe a heroin seller. Now that is what it boils down to.

[DEFENSE COUNSEL]: Your Honor, excuse me, I have an objection. I object to the jury believing him, they can believe the witnesses as to material facts. [DISTRICT ATTORNEY]: I testified in this case, Your Honor.

TRIAL COURT: He testified in this case. [DEFENSE COUNSEL]: A very minute part, not material witness as to facts.” (Emphasis added)

The trial court overruled defense counsel’s objection and the prosecutor continued:

“[DISTRICT ATTORNEY]: It’s minute to him, when the evidence is that I am listening to one of their star witnesses testify or tell us before he comes to court, I am not going to tell what I am going to testify until I’ve talked to him. Now that has a little bit of bearing on this case . If you think that I have to get up here and lie, on this stand, and send somebody to the penitentiary, you are wrong.

[DEFENSE COUNSEL]: Your Honor, I object to that. He is interjecting his own beliefs as to the validity of this case and I think that is totally objectionable and I move for a mistrial.” (Emphasis added)

Appellant’s objection was again overruled. Still later in his argument, the prosecutor returned to this theme:

“[DISTRICT ATTORNEY]: We can go over this and over it, but it boils down to this, like I say, ladies and gentlemen, I am serious about this. You know, you just don’t pay me enough money to try to come in and convict an innocent person . ” (Emphasis added).

Immediately following the overruling of defense counsel’s objection and motion for mistrial, the prosecutor repeated this argument:

“[DISTRICT ATTORNEY]: What I mean by that, what I mean by that is that my investigator testified, I have testified as to what this star witness said, and it doesn’t mean that much to me, top, side or bottom, and I say this again, referring to that, you do not pay me enough money to come up here and perjure myself and lie on the stand.” (Emphasis added.)

Similar language was held improper argument in Jones v. State, Tex.Cr.App., 520 S.W.2d 755. In Jones, the prosecutor [the same prosecutor involved in this appeal] stated:

“So let me make this clear to each and every one of you, it is important, you don’t pay me enough money to come here and convict an innocent man.”

The majority of this Court found that the argument in Jones was invited by a statement referring to the district attorney’s salary and that it was easy to stand behind the badge of authority. Therefore, although the argument was improper, it did not constitute reversible error because it was invited.

The State argues that the instant case presents invited argument and is controlled by Jones:

“A hint at the tone of the trial set by the defense is revealed when appellant, at the trial’s beginning, tried to place the district attorney’s investigator under the rule. This is becoming an increasingly prevalent (in this area) defensive tactic to keep the prosecutor’s investigator out of the courtroom and away from the witnesses for either side .

The mood of the trial at the onset continued throughout the trial by the defense counsel’s attempt to implicate the State in some sort of contrived plot to intimidate a defense witness .

The district attorney and his investigator were compelled to testify in an attempt to remove the cloud appellant had placed over the State’s position. It was, therefore, appellant’s actions which made the motives of the State and the credibility of the prosecutor an issue, which issue, if left unanswered, could have logically been construed as an admission of sorts

The State does not cite any portion of appellant’s argument to support its contention that the district attorney’s response was invited, and a review of the record does not show that the prosecutor’s argument was so invited. Defense counsel did not discuss the district attorney’s testimony in his brief summary of the evidence and made only passing reference to Barker’s testimony.¹ Looking to the arguments in the context of the complete record, we find only one general statement which could conceivably be construed as an oblique reference to the district attorney’s testimony. This occurred when defense counsel argued the credibility to be given witnesses in general:

“The defense then called Elmer Don Culp. You are, of course, the judges of the credibility of Mr. Culp and every other witness who testified. Their motivation, the reasons for it, whether they are biased or unbiased, and their interest in the case. Of course, everyone who participated as a witness is interested in the case.”

We decline to construe this as inviting the district attorney’s reply argument.

In a concurring opinion in Jones, Judge Odom did not find the prosecutor’s argument to be invited, although he agreed that it did not constitute reversible error. Judge Odom observed that had the prosecutor dwelt on the matter or made a more direct statement of his opinion, then the situation would be different. The complained of argument in the instant case, like the argument in Jones, carried the implication that the prosecutor believed appellant was not innocent. Unlike Jones, however, the complained of statement was made four times in the closing argument and was one of the primary thrusts of that argument. Even if the prosecutor’s argument could be construed as invited by the “tone of the trial”, his response went far beyond a legitimate reply. Boyde v. State, Tex.Cr.App., 513 S.W.2d 588; Stein v. State, Tex.Cr.App., 492 S.W.2d 548.

Although the district attorney did testify briefly at the trial, it does not follow that he may then argue to the jury that' they should believe him and the two other witnesses rather than a heroin seller. Such argument is impermissible because it conveys to the jurors that the prosecutor has a basis for his conclusions in addition to the evidence they have before them. Fowler v. State, Tex.Cr.App., 500 S.W.2d 643.

Although not cited in appellant’s brief, we note other instances of questionable argument in both phases of the trial; attacks on counsel; and attempts to circumvent the trial court’s ruling. We recognize that this trial was conducted in a spirited and aggressive fashion, but in light of the punishment assessed, it is reasonable to assume that the prosecutor’s argument had a cumulative negative effect and was calculated to deprive appellant of a fair and impartial trial.

The judgment is reversed and the cause remanded.

ONION, P. J., and DOUGLAS, J., dissent.

1 . With reference to Barker’s testimony, defense counsel stated:

“Subsequent to that, Mr. Barker was called by the prosecution. He took the stand and he related how he had talked to Mr. Culp, but Mr. Barker did not in any way tell you that he was present when the offense occurred, that the defendant had made any admissions or confessions to him, so in effect, what Mr. Barker related to you, if it had anything to do with this case, it pertained to the testimony of Mr. Culp and the motivation of Mr. Culp.”