Felton v. State

659 S.W.2d 482
CourtCourt of Appeals of Texas
DecidedFebruary 29, 1984
Docket05-83-00065-CR
StatusPublished
Cited by17 cases

This text of 659 S.W.2d 482 (Felton 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
Felton v. State, 659 S.W.2d 482 (Tex. Ct. App. 1984).

Opinions

WHITHAM, Justice.

On the court’s own motion, our former opinion is withdrawn. Following re-submission the following opinion is substituted as the opinion of the court.

Appellant appeals a conviction for aggravated robbery. The jury assessed punishment at seventy-five years confinement in the Texas Department of Corrections. We affirm.

In his first ground of error appellant contends that statements made by the prosecutor during voir dire were error. The statements concerned the conditions under which the jury could assess an enhanced sentence. Appellant contends that the statements informed the jury panel, by innuendo, that the appellant was a convicted felon. Thus, appellant concludes that he was denied a fair trial. The statements with which we are concerned were made by the prosecutor while qualifying potential jurors on the range of punishment applica[484]*484ble to the offense. The prosecutor told the jury panel that normally the minimum punishment for the offense was five years, but that under “certain circumstances” a minimum punishment of fifteen years was required. The prosecutor then stated: “Those circumstances could come about if the state proved that the defendant had been previously convicted of a felony offense — .” At this point, appellant objected to any further mention of a prior felony conviction. His objection was overruled. This objection was based on two pre-trial motions in which appellant sought to prevent any mention, either directly or indirectly, of a prior felony conviction. After the objection was overruled, the prosecutor reiterated that the sentence was to be enhanced if a prior felony conviction was shown, and then qualified the jury on the enhanced minimum sentence. We conclude that the prosecutor’s statements were proper under Frausto v. State, 642 S.W.2d 506 (Tex.Cr.App.1982); Martinez v. State, 588 S.W.2d 954 (Tex.Cr.App.1979); and Bevill v. State, 573 S.W.2d 781 (Tex.Cr.App.1978) (en banc). In both Bevill and Martinez the court had before it the question of whether the jury could be qualified on the full range of punishment in an enhancement case in which the jury might be called upon to assess punishment.

In Bevill the Court stated:

Where the jury may be called upon to assess punishment, both the State and the defendant have a right to qualify the jury on the full range of punishment. Thus, it is proper to inform the jury of the range or punishment applicable to an offense which is enhanced by one prior felony offense.

573 S.W.2d at 783. Martinez referred to and followed the above holding from Bevill, 588 S.W.2d at 956. Thus, the Court of Criminal Appeals has afforded both sides the right to so qualify the jury as prosecution or defense strategy dictates. Moreover, Frausto answers the appellant’s efforts to distinguish the present case from Bevill and Martinez. In Frausto, the court in quoting from Martinez, 588 S.W.2d at 956, stated:

Certainly, one can inform generally of applicable punishment without reading the precise allegations for enhancement, and thereby avoid what some have regarded as jeopardizing the presumption of innocence.

642 S.W.2d at 509 (emphasis in original). In Frausto, the court further stated:

To reiterate, a prosecutor may inform the jury panel of the range of punishment applicable if the State were to prove a prior conviction for enhancement purposes, but it may not inform the jury of any of the specific allegations contained in the enhancement paragraph of a particular defendant’s indictment.

642 S.W.2d at 509.

Accordingly, we disagree with appellant that the comments of the prosecutor during voir dire impaired his right to an impartial jury and hold, therefore, that in the present case the prosecutor’s statements were a permissible exercise of the State’s right to qualify potential jurors. Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that the trial court erred in the guilt or innocence stage in failing, over objection, to define properly the term “effective consent.” Appellant complains of the following definition of “effective consent”:

Effective consent means assent in fact, whether express or apparent, and includes consent by a person legally authorized to act for the owner. Consent is not effective if induced by force, threats, or fraud.

Appellant’s objection was as follows:

The Defendant would show that such definition by the court is not a statutory definition as authorized by either Section 1.07(a)(12), of the Texas — or Section 31.-01(4), both sections [of the] Texas Penal Code.

We conclude that the definition properly defined the term “effective consent” under TEX.PENAL CODE ANN. Section 1.07(a)(12) (Vernon 1974) and that it [485]*485was proper for the trial court to use the general definition of “effective consent” from Section 1.07(a)(12) rather than the definition of “effective consent” contained within the chapter on theft, TEX.PENAL CODE ANN. Section 31.01(4)(A) (Vernon 1974). Preston v. State, 641 S.W.2d 638 (Tex.App. — Dallas 1982, pet. ref’d) (en bane). Indeed, it is now no longer necessary to charge on “effective consent.” Woods v. State, 653 S.W.2d 1 (Tex.Cr.App. 1983) (en banc).

[W]e hold that, where it is alleged, proven, and found that a defendant intentionally or knowingly placed the owner in fear of imminent bodily injury or death in the course of the taking, a charge is not defective for failing to require that the jury separately find the taking to have been without the effective consent of the owner.

Woods, slip op. at 2. Appellant’s second ground of error is overruled.

In his third ground of error appellant contends that the trial court erred in allowing the prosecutor to bolster the complainant’s testimony at the guilt or innocence phase. The prosecutor’s remark, the objection and the court’s ruling were:

(The Prosecutor): No question in her mind whatsoever, and you could see the convincing style in her testimony, and when she looked at this particular defendant over here, it was very sincere, no question about it.
(Defense Counsel): To which, I apologize, Your Honor, to which the last remark, we object as being Mr. Ortiz’ personal opinion and bolstering the witness, and we object to it.
The Court: Overruled.

Counsel may during final argument draw from those facts in evidence all inferences that are reasonable, fair, and legitimate and counsel has wide latitude without limitation in this respect so long as the argument is supported by the evidence and offered in good faith. Such inferences may be based upon what the jury-heard and observed in the courtroom during the presentation of evidence. Vaughn v. State,

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659 S.W.2d 482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felton-v-state-texapp-1984.