Norton v. State

771 S.W.2d 160, 1989 Tex. App. LEXIS 828, 1989 WL 36883
CourtCourt of Appeals of Texas
DecidedApril 11, 1989
Docket6-87-091-CR
StatusPublished
Cited by23 cases

This text of 771 S.W.2d 160 (Norton 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
Norton v. State, 771 S.W.2d 160, 1989 Tex. App. LEXIS 828, 1989 WL 36883 (Tex. Ct. App. 1989).

Opinions

GRANT, Justice.

Ray Norton was convicted in a jury trial of the murder of Bill Bailey. His punishment was assessed at thirty-five years in the Texas Department of Corrections and a $10,000 fine.

Norton contends that the trial court erred (1) by admitting a hearsay rendition of a statement allegedly made by the victim to his wife into evidence over objection; (2) by overruling his objection to unsupported statements made by the prosecutor during jury argument; (3) by holding the evidence sufficient to support the verdict; (4) by denying his motion for a directed verdict in which he had urged that the State had placed exculpatory statements by Norton into evidence and then failed to disprove them directly or indirectly; (5) by admitting business records without proper predicate; and (6) by allowing the prosecutor to imply during jury argument that deadly force cannot be used to protect property.

Norton shot and killed two men at approximately 6:00 a.m. on November 14, 1986, in his place of business. He then called the police and requested an ambulance. Officer Ricky Smith arrived at the scene at approximately 6:14 a.m. Upon Smith’s arrival, Norton sent him to a garage area containing a van loaded with thirty-four new truck tires. Behind the van, the officer found the bodies of Bill [162]*162Bailey and Preston Thomas. They had both been shot in the head at close range with Norton’s .38 caliber revolver and were dead when the officer arrived. An unfired .45 automatic belonging to Thomas was found on the floor near Thomas’s outstretched hand. The tires had been stored in a parts room secured by a padlock. The lock had been cut away by an acetylene torch.

The State’s theory of the case was that Norton killed Bailey in order to relieve himself of several loan guarantees that he had entered into on Bailey’s behalf. The State argues that Norton lured the victims to his shop, had them load the tires, and then shot them both at point blank range.

In his theory of defense, Norton contends that he caught two men stealing tires in a darkened warehouse, that they attacked him without identifying themselves, and that he shot them in self-defense.

Norton contends that the trial court erred in overruling his objection to statements made by the prosecutor during jury argument which were not supported by the evidence. The State took the position that in order to support his self-defense claim, Norton had thrown down a gun near Thomas’s body. Norton complains of the following portion of the prosecutor’s final argument:

[A]nd the biggest evidence in this case, ladies and gentlemen, and the one that you were waiting to hear and didn’t hear is fingerprints. There are ...
MR. GOLDSTEIN: Your Honor ...
MR. ELLIOTT: ... no fingerprints in this case.
MR. GOLDSTEIN: Your Honor, we’re going to object to counsel suggesting that there are no fingerprints. There was no evidence offered by the State ...
MR. ELLIOTT: There is no evidence offered by anybody as to fingerprints, Your Honor. That’s a true statement.
THE COURT: It’s a true statement.
[[Image here]]
[At the bench]
MR. GOLDSTEIN: If the State is going to argue that there were no fingerprints, you know, they could have asked every witness about fingerprints on each of those items, and there was no evidence about it.
MR. ELLIOTT: It’s a true fact. There is no evidence about fingerprints in this case.
MR. GOLDSTEIN: That’s argumentative.
THE COURT: That’s your objection? Objection is overruled.
[Before the jury]
MR. ELLIOTT: One fingerprint could have cleared this up. One fingerprint on any gun. Where is it at? Why aren’t there any fingerprints on the guns? Isn’t it a reasonable deduction that when there is no fingerprint on something, one of two things happened. Either it wasn’t touched, or it was wiped.
You can bet Bill Bailey and Preston Thomas didn’t wipe a fingerprint off of nothing. There is only one man left to fix the situation so there is no fingerprints. There’s no fingerprints. All these scientific tests. Not a fingerprint. Not one.

The jury argument by the State must fall into one of four categories: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) response to defendant’s argument, and (4) plea for law enforcement. Briddle v. State, 742 S.W.2d 379, 388-90 (Tex.Crim.App.1987); Gomez v. State, 704 S.W.2d 770 (Tex.Crim.App.1985). Even when an argument exceeds the permissible bounds of these areas, it will not constitute reversible error unless, in light of the record as a whole, the argument (1) is extreme or manifestly improper, (2) is violative of a mandatory statute, or (3) injects new facts that are harmful to the accused into the proceedings. Everett v. State, 707 S.W.2d 638 (Tex.Crim.App.1986); Todd v. State, 598 S.W.2d 286 (Tex.Crim.App. [Panel Op.] 1980).

In the present case, as the prosecutor repeatedly pointed out, there was no evidence of fingerprints. He then proceeded to argue at length that there were no fingerprints on the gun and that the reason [163]*163there were no fingerprints on the gun was that Norton had obviously wiped them off in an effort to create a defense. This was not a reasonable deduction from the evidence because there was no evidence presented on the subject at all. No evidence of fingerprints is greatly different from evidence of no fingerprints. The record likewise contains no argument or statement by defense counsel which can reasonably be construed as inviting the State’s objectionable argument. The argument was clearly designed to strengthen the State’s case against the defendant, and was therefore calculated to prejudice the jury by matters not properly before them. Campbell v. State, 610 S.W.2d 754 (Tex.Crim.App. [Panel Op.] 1980); Stearn v. State, 487 S.W.2d 734 (Tex.Crim.App.1972). It is established law that the prosecutor cannot use closing argument to get evidence before the jury that is outside the record and prejudicial to the accused. Everett, 707 S.W.2d at 641. An objection was overruled, and the prosecutor later repeated the argument.

The State also contends that if the argument was improper, Norton failed to preserve error. The rule is that a general objection is normally insufficient to preserve error. Lewis v. State, 664 S.W.2d 345 (Tex.Crim.App.1984). Failure to make a proper and timely objection waives any impropriety in the argument. Romo v. State, 631 S.W.2d 504 (Tex.Crim.App. [Panel Op.] 1982). In the present case, an objection was tendered that the statement was argumentative. Prior to that objection, however, counsel had objected more accurately that the argument was outside the record.

In the recent case of Everett v. State, supra, the Court of Criminal Appeals examined a similar situation.

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Norton v. State
771 S.W.2d 160 (Court of Appeals of Texas, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
771 S.W.2d 160, 1989 Tex. App. LEXIS 828, 1989 WL 36883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norton-v-state-texapp-1989.