MacDonald v. State

761 S.W.2d 56, 1988 WL 108754
CourtCourt of Appeals of Texas
DecidedFebruary 22, 1989
DocketA14-87-00586-CR
StatusPublished
Cited by38 cases

This text of 761 S.W.2d 56 (MacDonald 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
MacDonald v. State, 761 S.W.2d 56, 1988 WL 108754 (Tex. Ct. App. 1989).

Opinions

OPINION

ROBERTSON, Justice.

The jury rejected appellant’s not guilty plea to a charge of aggravated assault and, finding he was previously convicted of a felony, assessed punishment at confinement for three years. Issues for appeal concern the propriety of the prosecutor’s jury argument, admissibility of testimony from which the jury may have inferred extraneous offenses, and the court’s refusal to include appellant’s requested instructions. We affirm.

The facts in this case are greatly disputed. Appellant was arrested at 4640 Knoxville Street, on a charge of aggravated assault. The indictment on which he was brought to trial stated that he hit an officer with a flashlight, knowing that he was assaulting a peace officer. Testimony of police officers involved in the arrest revealed that several members of Houston’s Southeast Tactical Response Team were conducting an undercover operation on the 4600 block of Knoxville. One officer, in plain clothes, purchased narcotics from a man on the street and radioed to other officers that everyone standing in that field was participating in drug transactions. Within seconds of the broadcast, other officers arrived on the scene, wearing raid jackets, with the word “Police” in bright yellow letters. Everyone in the field took off running before the officers announced that they were police.

The complaining officer drove up within twenty feet of where appellant was standing in the field and observed him to run into an abandoned garage nearby. The officer, with the assistance of other members of the team, attempted to locate appellant in the garage and to prevent him from destroying any evidence of narcotics. They testified that appellant was found standing in a room of the garage that was apparently a bathroom without a functioning toilet. One officer removed appellant from the bathroom and was struck by appellant. A struggle ensued which ended outside of the garage and resulted in the injury of both appellant and one officer. The state contends that during this struggle outside the garage, appellant seized an officer’s flashlight and used it to assault the complaining officer.

Appellant claimed throughout his trial that he resided at a garage apartment at the location of his arrest. However, the arresting officers testified that the house appeared abandoned, the windows were boarded up, and the house was dark and cold at the time of their entry. Additionally, appellant did not recall the correct ad[59]*59dress of the garage, and testified inconsistently as to who was the owner of the property. He also testified that there, was electricity in the house on the night of his arrest, despite testimony from a representative of the power company that service to that address had been terminated months before the day of appellant’s arrest.

Appellant’s version of the arrest was also distinctly different from that of the complaining officer. Appellant stated that he was relaxing at home when four or five men broke into his house and began assaulting him. He stated it was several minutes before he could see that they were white men, with guns, and realized that they were police officers. However, appellant consistently maintained that he did not at any time assault an officer, nor did he resist arrest. In fact, appellant claims the officers never informed him of their purpose for being at that location or that he was under arrest.

What is not disputed is that, after the arrest, the officers called an ambulance and appellant and the officer were treated at the scene. While appellant was handcuffed and waiting in the police car, the officers returned inside the structure to look around.

The prosecution elicited testimony at trial that the garage contained an old rotted couch and syringes, that the officers knew the place to be a “crack house” or “smoke house”, and that the neighborhood was known as a location in which cocaine was sold. Objections to the characterization of the garage as a “crack” or “smoke” house were sustained and the jury instructed to disregard. The jury was also instructed not to consider that syringes were seen in the house. However, one officer testified, without objection, that appellant smelled like cocaine at the time of his arrest. Further, the state, in its cross-examination of appellant, elicited testimony that no objects or personal property were taken from him at the time of his arrest.

In his first point of error, appellant contends the trial court erred in admitting evidence of extraneous offenses and in failing to order a mistrial after admission of the evidence. Appellant’s brief of this point cites the court to some thirty five pages of the statement of facts in which appellant contends these errors occurred. We are not obligated to review these alleged errors because appellant’s brief does not comply with the briefing requirements for this court. It is not the obligation of the appellate court to locate specific instances of error from among general citations to numerous pages of the statement of facts. Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407 (Tex.App.—Dallas 1987, writ ref’d n.r.e.).

However, in examining the specific instances in which appellant claims error was committed, we find only two occurrences in which evidence was admitted over appellant’s timely objection. The first was a photograph of a gun used by the complaining officer which he stated he tossed to another officer during the struggle with appellant, out of fear that appellant was trying to grab the gun from him. The testimony as to the manner in which the struggle took place was admissible to show the jury the context of the offense. Archer v. State, 607 S.W.2d 539, 542 (Tex.Crim.App.1980). While admission of a photograph of the gun into evidence appears unnecessary, we cannot believe that appellant was harmed by this merely cumulative evidence. In fact, appellant concedes that the admission of the photograph could be considered harmless. Appellant argues, however, that the prosecutor’s remarks during closing arguments compounded the error to appellant’s detriment.

The prosecuting attorney’s remarks to the jury were as follows: “And you remember officer Van Wagenen testifying about the fear that he experienced when he saw all the officers, the officer’s pistol waiving in the air and you heard officer Villoutreix testifying how he felt the defendant grabbing for his pistol. This is not a case that should be taken lightly given what this man did.” It is well settled that closing argument may contain a summation of the evidence and all reasonable deductions therefrom. Modden v. State, 721 S.W.2d 859 (Tex.Crim.App.1986). During [60]*60trial, Villoutreix testified that during the struggle with appellant, he “felt somebody pulling on my pistol. I looked down and it was the defendant.” Van Wagenen also testified that while Villoutreix and appellant were struggling, he “saw a revolver in the air. I mean like .that in someone’s hand.” “[I]t only took me a split second to realize it was Villoutreix’s revolver.” Further testimony by Van Wagenen showed that he yelled at Villoutreix to give him his gun and that Van Wagenen was able to get the pistol away from Villoutreix, who was still struggling with appellant.

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Cite This Page — Counsel Stack

Bluebook (online)
761 S.W.2d 56, 1988 WL 108754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macdonald-v-state-texapp-1989.