Lasker v. State

837 S.W.2d 727, 1992 Tex. App. LEXIS 2147, 1992 WL 191089
CourtCourt of Appeals of Texas
DecidedAugust 13, 1992
DocketNo. 01-91-00851-CR
StatusPublished
Cited by3 cases

This text of 837 S.W.2d 727 (Lasker 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
Lasker v. State, 837 S.W.2d 727, 1992 Tex. App. LEXIS 2147, 1992 WL 191089 (Tex. Ct. App. 1992).

Opinion

OPINION

PRICE, Justice (Assigned).

Appellant, Andre Steffon Lasker, was convicted by a jury of murder, and the jury assessed appellant’s punishment at confinement for 99 years. In 11 points of error, appellant complains of improper jury argument, admission of prejudicial evidence, and ineffective assistance of trial counsel.

The record shows appellant and Ronald Juan Harris, the victim, attended a birthday party on November 21, 1990, in Brook-shire, Texas. Sometime after midnight, Dan Williams and Harris had an argument near stairs leading to the second story apartment where the party was taking place. As Williams walked away from Harris, appellant came out of the apartment, walked down the stairs, and began arguing with Harris. Appellant and Harris shoved each other; appellant produced a pocket knife and stabbed Harris in the chest.

Harris fell to the ground. Several bystanders tried to administer life-saving procedures, but backed off when appellant returned and displayed a knife. Twice, appellant prevented the bystanders’ efforts by standing over Harris and yelling, “Die, motherfucker, die.”

In points of error one and two, appellant complains the prosecutor made improper references to his failure to testify during closing argument at the guilt-innocence phase of the trial.

As a general rule, a prosecutor may comment on the failure of a defendant to call witnesses. Montoya v. State, 744 S.W.2d 15, 36 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 921 (1988); Mosley v. State, 686 S.W.2d 180, 183 (Tex.Crim.App.1985). However, a prosecutor’s comment on a de[729]*729fendant’s failure to testify offends both the state and federal constitutions. Owen v. State, 656 S.W.2d 458, 459 (Tex.Crim.App.1983); Nickens, 604 S.W.2d 101, 105 (Tex.Crim.App.1980) (op. on reh’g); Pollard v. State, 552 S.W.2d 475, 477 (Tex.Crim.App.1977). The language of such a comment must be either manifestly intended or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify. Griffin v. State, 554 S.W.2d 688, 691 (Tex.Crim.App.1977); Hicks v. State, 525 S.W.2d 177, 180 (Tex.Crim.App.1975). If, instead, the comment is an indirect allusion that might refer to the defendant’s failure to testify, reversal is not required. Cannon v. State, 691 S.W.2d 664, 667 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986).

To be permissible, jury argument must fall within one of four general areas: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to argument of opposing counsel, and (4)plea for law enforcement. Albiar v. State, 739 S.W.2d 360, 362 (Tex.Crim.App. 1987); Bell v. State, 724 S.W.2d 780, 802-803 (Tex.Crim.App.1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987); Morris v. State, 755 S.W.2d 505, 509 (Tex.App.—Houston [1st Dist.] 1988, pet. ref’d). Counsel may draw inferences from the record that are “reasonable, fair, and legitimate.” Allridge v. State, 762 S.W.2d 146, 156 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989).

The complained of jury argument occurred after defense counsel spoke of the State’s failure to subpoena, and call as witnesses, more of the pérsons present at the party:

Now, there is another problem in this case that I think that will—it alone would raise some reasonable doubt in your mind.
We have a pretty good police organization in this state. And why didn’t they bring in more witnesses who were not connected family wise or to either one or the other, to the deceased, or to Danny. Why didn’t they bring in some more? There’s no question but that there are other witnesses out there.
It’s the State’s duty to bring you the whole case. There’s bound to be some witnesses that could have cleared up some questions in your mind as to whether that knife was in the right hand or the left hand, as to whether this man even had a knife.

In response, the prosecutor began his summation with the following statement:

Thank you, judge. Let’s talk about this right here for a second. Counsel would have you believe that that’s a sacred pew, that only the State’s witnesses come in and use it. That’s not true. The State has the right to present evidence; the defendant has the right to go out and present a case.

(Emphasis added.) Defense counsel objected to this comment, and the trial court sustained the objection. The trial court stated, “The jury is instructed that the defendant’s bringing or not bringing witnesses is not a matter to be considered by you,” then denied counsel’s request for a mistrial.

We find the prosecutor’s remark, “the defendant has the right to go out and present a case,” was a response to defense counsel’s argument that the State should have called more witnesses to the offense. This remark was neither a direct nor an indirect comment on the failure of appellant to testify. The prosecutor did not refer to appellant; he merely alluded to the rights of defendants, in general. We hold this argument was not error.

Appellant also complains of the following argument by the prosecutor:

Now, there’s something else that really concerns me about this entire situation in that we have, because of a dead man, the ability to tell you what his blood alcohol content was, and what he had in his system as far as any kind of cocaine. But we do not have the ability, ladies and gentlemen, to tell you what was in Andre Lasker’s system ....

[730]*730(Emphasis added.) Again, defense counsel objected, the trial court sustained the objection, and denied counsel’s request for a mistrial. The trial court instructed, “The jury is not to consider any consideration of the defendant’s condition. In compliance with the Court’s charge, the defendant need not put on any testimony at all. The Court’s charge speaks for itself in that regard.”

We find the prosecutor’s comments were reasonable deductions from evidence of the victim’s blood-alcohol and cocaine use that Dr. Espinóla, the medical examiner, brought to the jury’s attention. In addition, the prosecutor’s argument responded to arguments of defense counsel that, “There was cocaine there [at the party]; we know because we’ve got a scientific result,” and “We know there was alcohol there, because we have the scientific test of it.” As such, the prosecutor’s comment was invited jury argument and was not error. Allridge, 762 S.W.2d at 156; see Long v. State, 823 S.W.2d 259

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Related

Chapman v. State
859 S.W.2d 509 (Court of Appeals of Texas, 1993)
Lasker v. State
844 S.W.2d 753 (Court of Criminal Appeals of Texas, 1993)

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Bluebook (online)
837 S.W.2d 727, 1992 Tex. App. LEXIS 2147, 1992 WL 191089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lasker-v-state-texapp-1992.