Ford v. State

860 S.W.2d 731, 1993 Tex. App. LEXIS 2495, 1993 WL 338632
Court of Appeals of Texas·Decided August 25, 1993·No. No. 09-92-232 CR·Published·Cited by 2 cases

Opinion

OPINION

WALKER, Chief Justice.

This is an appeal from a conviction of the felony offense of Burglary of a Vehicle. Appellant’s indictment included two separate enhancement allegations which raised appellant’s punishment status to that of an habitual offender. Following a guilty verdict, the jury assessed punishment of ninety-nine (99) years in the Institutional Division of the Texas Department of Criminal Justice. The jury also fined appellant $10,000. Appellant presents two points of error on appeal, viz:

Point of Error I: The prosecutor’s jury argument was manifestly improper, harm-fid and prejudicial as a comment on the failure of the accused to testify.
Point of Error II: The evidence was insufficient to prove that the appellant committed the offense of Burglary of a Vehicle.

Under the first point of error, appellant complains of the following argument made by the State’s attorney during his opening statement to the jury during the guilt/innocenee phase of trial:

... I think one of the things you will come to a conclusion was that the defendant was acting wrongfully, that he was out there committing a burglary. And here’s why. First of all, look at the time of the day. Defendant was out at 5:00 in the morning. That in itself, by itself, folks, I don’t think establishes too much. After all, Mr. Mar-anda was out a [sic] five in the morning. But what was his purpose? Mr. Maranda was out delivering newspapers, going about his business. What about the defendant? Was he going about business? Arguably not because he was at an establishment that was closed up at that hour. There is no testimony that refutes that.... What else about it? Well, take a look at the way he was acting. Both Jim Maranda and Officer Phil Davis testified the defendant was acting suspiciously, so you have two things. You have the defendant in a closed establishment during early morning hours, and the way he’s acting. Defendant, there is no testimony that he was an employee, that he was a customer, or had any other legitimate business purpose there. Another thing that is real important in this case, real critical in this case, I feel, is what is the defendant’s action when he is confronted by the police? That’s always very important. How does he act when the police come up and check him out. Does he continue to act suspiciously? Or does he have some reasonable explanation for his actions?

The record reflects that appellant made no objection to any part of this argument, therefore, appellant failed to properly preserve the complaint for appellate review. Tex.R.App.P. 52(a). In his brief, appellant candidly acknowledges his procedural error at trial but requests this Court treat the State’s comments as fundamental error because of their egregious nature. Although decided prior to the Rules of Appellate Procedure, Johnson v. State, 629 S.W.2d 953 (Tex.Crim.App.1982) provides:

In his petition for discretionary review, appellant contends that the prosecutor committed fundamental error in his argu[733]*733ment to the jury when he directly alluded to the appellant’s failure to testify. The Court of Appeals concluded that the complained of argument did not constitute a comment on appellant’s failure to testify. A concurring opinion, filed by Associate Justice John Vance, concluded that the complained of argument was necessarily a reference to appellant’s failure to testify. However, the concurring Justice noted that the appellant did not specifically object to the prosecutor’s comment. Therefore, nothing was presented for review.
We have examined the record on appeal and agree ivith the concurring opinion. (emphasis added)

Johnson, 629 S.W.2d at 954. See also, Espinoza v. State, 843 S.W.2d 729, 730-731 (Tex.App. — Austin 1992, pet. ref'd).

There are certain meritorious complaints of error which will present an appellate court with nothing to review if a proper objection and adverse ruling is not first obtained at the trial court level. In the instant case, appellant’s first point of error falls within this rule. We hold that the State’s argument was not fundamentally harmful to the extent that proper objection was unnecessary. Appellant has failed to properly preserve this point for appellate review. Point of error one is overruled.

Appellant’s second point of error complains of the sufficiency of the evidence. A review of the facts in the light most favorable to the verdict is in order. Factually, on January 29, 1992, at approximately 5:00 a.m., Jimmy Maranda was delivering newspapers to the Texaco station on the corner of Denman and Timberland Streets in Lufkin. When Mr. Maranda pulled up to the store he observed an individual crouched down behind a pick-up truck parked at a business, Wheat’s Alternator and Starter Service, adjacent to the Texaco station. The individual, later identified by Mr. Maranda as appellant, was crouched down on the driver’s side of the truck. Mr. Maranda stated that appellant was acting “highly suspicious” as appellant continued to crouch and peek around the truck in an attempt to hide from Maranda. Maranda stated that the lighting was very good and that he (Maranda) was only about forty feet away from the truck. Maranda further testified that he drove to the police station and reported the suspicious events to the police.

The State next called Officer Phil Davis of the Lufkin Police Department. Officer Davis testified that he was on patrol on the morning of January 29, 1992, when he was dispatched to Wheat’s regarding a suspicious person. When Officer Davis pulled his marked patrol unit up to the closed business, Davis observed a white male, later identified as appellant, standing on the driver’s side of the truck, standing “toward a box on the truck ... kinda crouched over it and when he seen (sic) me, he turned to his right and seen (sic) me, he immediately kinda ducked and walked in front of the truck.” Officer Davis exited the patrol unit and walked up to the front of the truck via the passenger side and appellant walked away towards an open field and was approximately ten to fifteen yards away when the officer reached the front of the truck.

At this point, Officer Davis identified himself and called for appellant to stop. Appellant did not stop but took several more steps. Officer Davis, unable to see appellant’s hands, drew his weapon and requested that appellant stop immediately. Appellant stopped at that point. Officer Davis then saw and heard appellant drop several “shining” objects to the ground. The objects made a clanking sound upon striking the ground. A search of appellant turned up no weapons or property. Appellant initially identified himself as Terry Fielder, but he had no corroborating identification. Appellant further stated that he was staying at Petty’s Motel and gave Davis a particular room number. The motel clerk revealed no Terry Fielder registered at Petty’s Motel. Appellant also told Officer Davis that he (appellant) was employed by the owner of the truck as his driver and that he (appellant) was taking an air compressor off the truck for the owner. Davis noticed that appellant was wearing gloves and that appellant acted “real nervous.” After a backup unit arrived, appellant was detained at the scene as Officer Davis attempted to verify appellant’s statement.

[734]

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Ford v. State, 860 S.W.2d 731, 1993 Tex. App. LEXIS 2495, 1993 WL 338632 (Tex. Ct. App. 1993).

860 S.W.2d 731 (Ford v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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