Johnson v. State

604 S.W.2d 128, 1980 Tex. Crim. App. LEXIS 1238

Opinions

OPINION

DALLY, Judge.

This is an appeal from a conviction for murder. The punishment is imprisonment for fifteen years.

Appellant contends that the trial court erred by permitting the prosecutor to refer to and display before the jury a pistol which had been held inadmissible in evidence. Appellant also contends that evidence of the deceased’s use of marihuana was erroneously excluded, and that the prosecutor engaged in improper jury argument.

The evidence establishes that appellant fatally shot Sammie Lee Chopp, Jr., during the early morning hours of March 28, 1976. The shooting took place in the duplex apartment appellant and the deceased shared. Howard Chopp, the brother of the deceased, witnessed the shooting. He testified that his brother and the appellant began arguing after she returned to the apartment at approximately 3:00 a. m. A struggle ensued, durmg which the two combatants fell to the floor. The witness heard three muffled shots, after which appellant stood up and fired three more shots into the prone body of the deceased.

Appellant admitted shooting the deceased, but contradicted Howard Chopp’s version of the events. She testified that the deceased was “crazy” due to the use of marihuana, and had attacked her and was trying to kill her. She testified that she shot the deceased in self-defense.

Fort Worth police officers Dickie Gatlin and Jimmy Spinks testified that they discovered a revolver and six spent cartridges during a search of the apartment a few hours after the shooting. Spinks identified State’s exhibit six as the revolver in question, and testified that at the time it was found it had been recently fired. At no time did appellant object to this testimony or to the display of the pistol before the jury. In fact, appellant carefully cross-examined both witnesses about the weapon.

The prosecutor offered State’s exhibit six in evidence during his redirect examination of Spinks. Appellant objected to the introduction of the pistol on the ground that the search of the house had been unconstitutional, and the objection was sustained. Appellant then requested that the pistol be removed from the presence of the jury.

Appellant contends that the prosecutor was erroneously permitted to display or refer to the pistol on three occasions after it had been ruled inadmissible. The first instance occurred during the prosecutor’s questioning of Howard Chopp. The prosecutor asked the witness:

“Q. Mr. Chopp, I will show you what has been marked as State’s Exhibit Number Six and ask you if this is the pistol you saw that evening?

“A. Yes, that looks like it.

“Q. It looks like it?

“A. Yes.

“Q. Mr. Chopp, I will also show you what has been marked as State’s Exhibits One through Five and ask you if you know the person whose picture these depict?

“A. Yes, that is my brother, Sammie Lee Chopp, Jr.

“Q. Could these pictures-

“MR. DUSHMAN: Excuse me (Discussion at the bench)

“THE COURT: All right. The jury go to the jury room, please.”

Outside the presence of the jury, appellant moved for a mistrial because of the display of the pistol but the motion was overruled.

The second reference to the pistol occurred during the prosecutor’s cross-examination of appellant, when he asked her:

“Q. There is no denial that you did shoot him with a pistol, is that right?

“A. Yes, sir.

“Q. There is no denial that you did empty the pistol?

“A. Yes.

“Q. Now do you have that pistol this date?

“A. No, sir.

“Q. All right. Have you seen it recently?

“MR. DUSHMAN: Excuse me, Your Honor. That is trying to get in the record what they can’t do. “THE COURT: Overruled. I will permit him to answer the question.

“BY MR. NEAL:

“Q. Have you seen the pistol recently?

“A. I saw it yesterday.

“Q. You saw it yesterday?

“A. Yes, sir.”

The third reference to the pistol occurred during rebuttal testimony by Officer Spinks. The prosecutor questioned Spinks about his search of the murder scene as follows:

“Q. Well, knowing that there had been a shooting your primary concern was locating the weapon?

“A. Yes, sir.

“Q. And at that time you weren’t aware that there was anything such as marijuana involved in this case, is that true?

“A. Yes, sir.

“Q. That is not true?

“A. I was not aware it was involved, sir.

“Q. So in your search when you searched and you found a pistol that you have talked about when you all came to the window-at that point you were satisfied with at least that portion of your investigation?

“A. Yes, sir.”

Appellant voiced no objection to this testimony.

Appellant contends that the display of and references to the pistol after it was held inadmissible was a deliberate effort by the prosecutor to prejudice appellant and deny her a fair trial. However, appellant permitted the police officers to fully testify to the discovery of the pistol, and to display and identify the pistol before the jury, without objection. Indeed, appellant also questioned the officers about the pistol. Thus, appellant’s objection to the admission of the pistol in evidence came too late. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976). The display of the pistol after it had been held inadmissible reflects no credit on the prosecuting attorney, but it could hardly have prejudiced appellant in light of the earlier testimony to which no objection was made. See Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977).

Appellant testified that the deceased’s attack on her was precipitated by his use of marihuana. In this connection appellant contends that the trial court erred in refusing her to permit her uncle, George Garrett, Jr., to testify before the jury that the deceased was an habitual smoker of marihuana, and that under the influence of the drug the deceased’s eyes would become red and he would become violent and aggressive.

Five witnesses, appellant, her father, her uncle, the deceased’s brother, and Shelly Morgan, a friend of appellant, testified that the deceased had physically attacked appellant on various occasions. Both appellant and Morgan testified that the deceased was a frequent user of marihuana and that he would become violent when under the influence of the drug, and described several marihuana-related assaults by the deceased against appellant. Appellant testified that on the night of the shooting the deceased’s eyes looked like “bottles of fire” and that he seemed “crazed on marihuana.” Given this substantial body of testimony concerning the deceased’s use of marihuana and its violent effect on him, the trial court’s refusal to admit Garrett’s proffered testimony was not reversible error. Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974); Coleman v. State, 442 S.W.2d 338 (Tex.Cr.App.1969).

In several grounds of error, appellant contends that the prosecutor engaged in improper jury argument during the guilt-innocence stage of the trial. In the first of these grounds of error, appellant contends that the prosecutor misstated the law of self-defense when he argued:

“Of course, in this murder case, as in a great number of murder cases, the law is that a person has the right of self defense. In this murder case, as in other murder cases, that self defense issue is raised because if a defense is not raised they are guilty as charged. So the accused had to raise some sort of defense in this case, otherwise all the jury had to do is walk out and say yes, she’s guilty.

“MR. DUSHMAN: Excuse me, Your Honor. I’m going to object to counsel arguing that, that is a misstatement of the law. It’s not the duty of the Defendant to raise an affirmative issue in this case or any case. It’s the burden of the State to go forward with the proof as the law prescribes, proof beyond a reasonable doubt as to whether or not a person is guilty.

“THE COURT: The Court has charged the jury on the law with reference to that facet.”

Appellant failed to secure a ruling on her objection, nor did she request an instruction to disregard. Therefore, nothing is presented for review. Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977); Johnson v. State, 527 S.W.2d 525 (Tex.Cr.App.1975); Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App.1974). The trial court correctly charged the jury on the law of self-defense. The prosecutor’s remark, while erroneous, was not so prejudicial or manifestly improper as to require a reversal of the judgment.

Appellant complains that the prosecutor’s reference to her place of employment as a “beer joint” was designed to prejudice the jury against her. She draws attention to the two following remarks:

“You remember that they were referring to it as a cafe when all it boiled down to as selling pig knuckles and beer. Let’s face it. Where she worked was in this beer joint.”

“By the way, I don’t know why they referred to it all the time as the cafe. We did not introduce the word cafe. It was only through eliciting testimony that the witness said that these cafes they kept talking about were in truth beer joints.”

The evidence shows that appellant worked at Johnson’s Cafe, which was owned and operated by her parents. During her cross-examination, she was asked:

“Q. Do they serve food down there?

“A. Only pig’s feet.

“Q. Only pig’s feet?

“A. Yes, sir.

“Q. Actually, it’s not a restaurant, it’s a beer joint, isn’t it?

“A. Yes, sir.”

Thus, these and the other references to a beer joint in the prosecutor’s argument were supported by the evidence. Moreover, appellant never objected to the prosecutor’s use of the term. Nothing is presented for review. Cain v. State, supra; Webb v. State, 503 S.W.2d 799 (Tex.Cr.App.1974); Joines v. State, 482 S.W.2d 205 (Tex.Cr.App.1972).

Appellant contends that the prosecutor injected his personal opinion as to the credibility of the defense witness Shelly Morgan when he argued (the emphasized passage being that to which this ground of error relates):

“I will point out this, that the embarrassment that may have been caused to her alluded to by Counsel for the Defense as to her marriages and children and so forth-it wasn’t done to embarrass her. It was done to show you what kind of person she was and to demonstrate to you her credibility as a witness. That is the only tool that we as lawyers have. We can’t judge these people that get on this witness stand nor can you unless we can elicit from them information about them that will tell us are they truthful, credible people worthy of belief or are they in fact people whose conduct, background and habits, patterns of life, is such that I cannot place credence in their story. I cannot believe them."

Appellant did not object to this remark. Moreover, the record reflects that the prosecutor’s argument was invited by defense counsel’s argument, in which he accused the prosecutor of trying to embarrass Morgan and prejudice the jury against her by cross-examining her about her children, one of whom was born out of wedlock. Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973).

Appellant contends that the prosecutor injected unsworn testimony bolstering a State’s witness when he argued:

“Now the officers testified here that they found blood to the left and inside towards the bathroom on the floor. I have no reason to believe that the crime scene search officer would have any reason to misrepresent any fact to you from that stand. I have never seen the man before and I do not know him. He told me that and I believe him.”

Appellant did not object to this statement. In addition the argument was invited by defense counsel’s argument, a portion of which was as follows:

“The expert, this expert, the physical fact gatherer, who happens to be an expert on whether blood is fresh or whether it’s not fresh. For all I know the blood he saw was old blood of hers and not the other stuff of more recent from him because I know he bled somewhere, I don’t doubt it.

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“Yet Spinks [the crime scene search officer] could barely remember and after a conversation with the district attorney as early as this morning hesitated just a bit and said what did I have? You know, those sort of things.

“Folks, is that being forthright? .

But is he an expert on the things that he had been doing? And when you get down to it, the accurate physical findings. He didn’t measure the rooms. He didn’t measure where the blood spots were exactly. There were so many things that we went through that he didn’t do.”

See Lapp v. State, 519 S.W.2d 443 (Tex.Cr.App.1975).

Appellant contends that the prosecutor injected unsworn testimony as to what he would do if he were in appellant’s place when he stated:

“If I were in her case, if I were in her situation and I was testifying I would certainly testify in my own behalf, too, and I would not testify to anything that was favorable to the State. Remember who has everything to gain and nothing to lose from their testimony. This Defendant, that is who.”

Appellant did not object to this statement. In any event, the remark was a reasonable comment on the credibility of appellant’s testimony and was not improper. Doby v. State, 363 S.W.2d 286 (Tex.Cr.App.1963); Redding v. State, 166 Tex.Cr.R. 517, 316 S.W.2d 724 (1958).

Appellant contends that the prosecutor improperly injected his personal opinion about the feelings of Howard Chopp. The prosecutor argued:

“He is a witness that you are going to have to judge as to his credibility. I believe that he was fond of his brother. He came to visit him. His brother helped him financially in school. He has finished his college education now and I imagine he feels indebted to his brother. I know he feels a loss.”

Appellant did not object to this remark, which was invited by the following argument by defense counsel:

“After they got a statement from Howard at that time his testimony changed from what he told Officer Gatlin because he was under arrest. He knew then that his brother was dead and he was sitting in that cold jail up there. He started trying to do two things. One is give a little revenge from the death of his brother, but once you have given a statement you have kind of got to live with it whether he wants to or not.

“The second thing is being under arrest. There is not only the feeling about her now, but his own self is at stake. He certainly wants to make it very clear.

“Okay. If there was a struggle why didn’t he do what others did and that was jump up immediately and stop it? Now you know if the tables had been turned and during any supposed struggle — that the police officer couldn’t find a sign of — and if he had actually at that time choked her and killed her, like he had choked her on other occasions, I will guarantee you one hundred percent beyond all reasonable doubt that Howard would be up here on the stand in behalf of his brother. Yes, he would.

“Why didn’t he stop the struggle if there was one? What kind of a man was that?

“Well, my brother is just beating up the old gal. She provoked it.”

Appellant complains of two instances of allegedly improper jury argument by the prosecutor during the punishment stage of the trial. He first contends that the prosecutor improperly injected his personal opinion about the future actions of appellant. The prosecutor argued, relative to the statutory conditions of probation:

“Support her dependents. She never has. I doubt that she will. Her father and mother have provided their home since their birth. You will remember the testimony and you can conclude that from it. They will continue to provide for those children.”

Appellant did not object to this statement. Moreover, the prosecutor was responding to the argument by defense counsel that appellant would support her dependent children if granted probation and drawing a reasonable inference from the evidence, which showed that her children had lived in her father’s home most of their lives.

Appellant contends that the prosecutor misstated the law of probation when he argued that “the State of Texas . does not regard [murder] as a probatable offense.” While this is certainly a misstatement of the law, see V.A.C.C.P. Art. 42.12, appellant did not object to the remark. Also, the remark was made within the context of a legitimate plea for law enforcement. The prosecutor argued as follows:

“Murder is murder any way you look at it. Murder is something that the State of Texas and Tarrant County, that I represent, does not regard as a probatable offense. The State would ask you not to consider probation.

“Remember, if you will, please, when you were out here in the courtroom and I was selecting the jury I said would you each promise that you would consider the full range of punishment under the law as the Court shall direct you. The full range of punishment is five years to life or ninety-nine years in the penitentiary.

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“Remember something else, too, that I also said. That the Defendant had filed an application for probated sentence and I said now you are obliged to answering the questions of the Defense to consider probation, but you do not have to grant probation. You may consider it and reject it. In murder of this kind — this kind —let’s just call it murder; that’s what it is. It’s the worst crime you can commit when you take the life of a fellow man or a fellow woman.

“Murder is murder and murder should be punished. People must not feel in our community that murder can be committed and that somebody can be found guilty for it and no punishment assessed that is not commensurable with the standard of our community.”

The trial court properly submitted appellant’s request for probation to the jury. The prosecutor’s remark, while erroneous, was not so manifestly improper as to require a reversal of the judgment.

Conceding that none of her grounds of error concerning the prosecutor’s jury arguments were properly preserved, appellant argues that “when the entire tone of the final arguments is considered, the individual grounds cited above come together and constitute fundamental error in that the arguments are so fraught with impermissible and manifestly improper and harmful statements as to indicate a willful and calculated effort on the part of the prosecution to deny this Appellant a fair and impartial hearing.” We disagree.

This Court will not hesitate to reverse a judgment when the prosecutor engages in conduct calculated to deny the accused a fair and impartial trial. See Cook v. State, 540 S.W.2d 708 (Tex.Cr.App.1978); Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974); Renn v. State, 495 S.W.2d 922 (Tex.Cr.App.1973); Stein v. State, 492 S.W.2d 548 (Tex.Cr.App.1973). However, of the several instances of allegedly improper jury argument cited by appellant and discussed above, only two, the misstatements of law concerning self-defense and probation, were in fact erroneous. A reading of the transcription of the court reporter’s notes does not disclose a willful and calculated effort on the part of the prosecution to deny appellant a fair and impartial trial.

The judgment is affirmed.