Munoz v. State

Court of Appeals of Texas

Munoz v. State

803 S.W.2d 755, 1991 Tex. App. LEXIS 37, 1991 WL 170

CourtCourt of Appeals of Texas

DecidedJanuary 3, 1991

DocketC14-89-495-CR, A14-89-688-CR, B14-89-689-CR

StatusPublished

Cited by12 cases

This text of 803 S.W.2d 755 (Munoz 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.

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Munoz v. State, 803 S.W.2d 755, 1991 Tex. App. LEXIS 37, 1991 WL 170 (Tex. Ct. App. 1991).

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MAJORITY OPINION

PAUL PRESSLER, Justice.

Appellant was charged with the felony offense of aggravated sexual assault in two separate indictments, Tex.Penal Code Ann. § 22.021, and charged with the felony offense of attempted sexual assault in a third indictment. Tex.Penal Code Ann. § 22.011. The three eases were consolidated for trial. Appellant pled not guilty to the charges. A jury found appellant guilty on all three charges. The jury assessed punishment at life imprisonment in the Texas Department of Criminal Justice and a $10,000 fine for the two charges of aggravated sexual assault. The jury also assessed punishment at ten years confinement at the Texas Department of Criminal Justice and a fine of $5,000 for the attempted sexual assault. We affirm.

In his first point of error, appellant argues that the trial court erred in overruling the appellant’s objection to the prosecutor’s closing argument. It called for the jury “to consider the existence of the other victims” of the appellant. During the punishment stage of the appellant’s trial, the state offered five witnesses to testify to their opinions that the appellant was not a peaceful and law-abiding person. Each witness based her opinion on a single encounter with the appellant on a jogging trail. Appellant claims that asking the jury to send a message to the five witnesses called by the state was not a legitimate plea for law enforcement but a thinly disguised plea for the jury to punish the appellant for extraneous offenses committed against these witnesses.

A prosecutor is strictly prohibited from making reference to extraneous offenses for which the accused is not currently on trial. Melton v. State, 713 S.W.2d 107 (Tex.Crim.App.1986). The four categories of permissible prosecutorial jury argument are: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Brown v. State, 692 S.W.2d 497, 502 (Tex.Crim.App.1985). It is a proper plea for law enforcement to ask a jury to consider the impact of its verdict on a particular segment of the community. Borjan v. State, 787 S.W.2d 53, 56 (Tex.Crim.App.1990); see also Motley v. State, 773 S.W.2d 283, 293 (Tex.Crim.App.1989). Here, the prosecutor asked the jury to send a message to women who have “met the appellant on the jogging trail,” and to “everyone of us who would like to use that jogging trail,” and “to the police officers who tried so desperately to catch [the appellant].” The prosecutor made a legitimate plea for law en[757]*757forcement asking the jury to send a message with their verdict to a particular segment of the community; that is, women who have met the appellant, women who use the jogging trail, and the police who apprehended the appellant. Appellant’s first point of error is overruled.

In his second point of error, appellant contends that the trial court erred in overruling the appellant’s motion for mistrial after the state introduced evidence of an extraneous offense. Appellant’s argument is without merit. The prosecutor asked a witness if she did anything to the appellant and, in an unresponsive answer, the witness volunteered that after he “attacked” her she “hit him.” Appellant relies upon Murphy v. State, 777 S.W.2d 44, 64 (Tex.Crim.App.1989), for the proposition that an unadjudicated extraneous offense is inadmissible at the punishment stage of trial unless the accused “opens the door.” Appellant’s reliance on this case is misplaced. The trial court sustained appellant’s objection to the witness’s unresponsive answer and instructed the jury to disregard this testimony. Any harm caused by an extraneous offense mentioned in an unresponsive answer is cured by an instruction to disregard. American Plant Food Corp. v. State, 587 S.W.2d 679, 683-84 (Tex.Crim.App.1979); Allen v. State, 513 S.W.2d 556, 557 (Tex.Crim.App.1974). Appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.

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MAJORITY OPINION

PAUL PRESSLER, Justice.

Appellant was charged with the felony offense of aggravated sexual assault in two separate indictments, Tex.Penal Code Ann. § 22.021, and charged with the felony offense of attempted sexual assault in a third indictment. Tex.Penal Code Ann. § 22.011. The three eases were consolidated for trial. Appellant pled not guilty to the charges. A jury found appellant guilty on all three charges. The jury assessed punishment at life imprisonment in the Texas Department of Criminal Justice and a $10,000 fine for the two charges of aggravated sexual assault. The jury also assessed punishment at ten years confinement at the Texas Department of Criminal Justice and a fine of $5,000 for the attempted sexual assault. We affirm.

In his first point of error, appellant argues that the trial court erred in overruling the appellant’s objection to the prosecutor’s closing argument. It called for the jury “to consider the existence of the other victims” of the appellant. During the punishment stage of the appellant’s trial, the state offered five witnesses to testify to their opinions that the appellant was not a peaceful and law-abiding person. Each witness based her opinion on a single encounter with the appellant on a jogging trail. Appellant claims that asking the jury to send a message to the five witnesses called by the state was not a legitimate plea for law enforcement but a thinly disguised plea for the jury to punish the appellant for extraneous offenses committed against these witnesses.

A prosecutor is strictly prohibited from making reference to extraneous offenses for which the accused is not currently on trial. Melton v. State, 713 S.W.2d 107 (Tex.Crim.App.1986). The four categories of permissible prosecutorial jury argument are: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Brown v. State, 692 S.W.2d 497, 502 (Tex.Crim.App.1985). It is a proper plea for law enforcement to ask a jury to consider the impact of its verdict on a particular segment of the community. Borjan v. State, 787 S.W.2d 53, 56 (Tex.Crim.App.1990); see also Motley v. State, 773 S.W.2d 283, 293 (Tex.Crim.App.1989). Here, the prosecutor asked the jury to send a message to women who have “met the appellant on the jogging trail,” and to “everyone of us who would like to use that jogging trail,” and “to the police officers who tried so desperately to catch [the appellant].” The prosecutor made a legitimate plea for law en[757]*757forcement asking the jury to send a message with their verdict to a particular segment of the community; that is, women who have met the appellant, women who use the jogging trail, and the police who apprehended the appellant. Appellant’s first point of error is overruled.

In his second point of error, appellant contends that the trial court erred in overruling the appellant’s motion for mistrial after the state introduced evidence of an extraneous offense. Appellant’s argument is without merit. The prosecutor asked a witness if she did anything to the appellant and, in an unresponsive answer, the witness volunteered that after he “attacked” her she “hit him.” Appellant relies upon Murphy v. State, 777 S.W.2d 44, 64 (Tex.Crim.App.1989), for the proposition that an unadjudicated extraneous offense is inadmissible at the punishment stage of trial unless the accused “opens the door.” Appellant’s reliance on this case is misplaced. The trial court sustained appellant’s objection to the witness’s unresponsive answer and instructed the jury to disregard this testimony. Any harm caused by an extraneous offense mentioned in an unresponsive answer is cured by an instruction to disregard. American Plant Food Corp. v. State, 587 S.W.2d 679, 683-84 (Tex.Crim.App.1979); Allen v. State, 513 S.W.2d 556, 557 (Tex.Crim.App.1974). Appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.

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803 S.W.2d 755, 1991 Tex. App. LEXIS 37, 1991 WL 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/munoz-v-state-texapp-1991.

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