Person v. State

706 S.W.2d 153, 1986 Tex. App. LEXIS 12192
CourtCourt of Appeals of Texas
DecidedFebruary 13, 1986
DocketNo. 01-85-0219-CR
StatusPublished
Cited by8 cases

This text of 706 S.W.2d 153 (Person 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
Person v. State, 706 S.W.2d 153, 1986 Tex. App. LEXIS 12192 (Tex. Ct. App. 1986).

Opinion

[154]*154OPINION

LEVY, Justice.

This is an appeal from a conviction for delivery by actual transfer of cocaine, a controlled substance, in an amount less than 28 grams. The jury found the appellant to have been previously convicted of two felonies, pursuant to enhancement paragraphs, and assessed punishment at 75 years confinement. We reverse and remand.

Appellant confines his four grounds of error to the punishment phase of the proceedings. By his first three grounds, appellant asserts errors in overruling defense counsel’s objections to prosecutorial argument at the punishment phase of trial.

In his first ground, appellant contends that the trial court erred in overruling his objection to the prosecutor’s assertion that unspecified witnesses were scared to testify during the punishment phase.

The specific portion complained of is as follows:

PROSECUTOR: There are other people that live out there in that community besides this type of guy, right? There are people out there. Whether you know it or not that are older people out there. They’re going to be forced to live—
DEFENSE COUNSEL: He doesn’t know who lives out there. It’s totally out of the record.
PROSECUTOR: Reasonable—
THE COURT: Overruled. Let’s proceed.
PROSECUTOR: There are people that’s going to be forced to be there the rest of their life.
DEFENSE COUNSEL: It’s total speculation, Your Honor.
THE COURT: Overruled.
PROSECUTOR: They’re going to be living out there, old, elderly people. No way that they are going to move out of that part of the city, okay? No way. They didn’t come down here. I think it’s reasonable inference from the evidence that they are probably too scared to come down, scared of what these type of guys and the guys he’s buying it from are going to do.
DEFENSE COUNSEL: That’s outside the record. It’s speculation. It’s inherently — he’s pointing at the Defendant. There is no evidence this man is dangerous or harmful or has ever harmed anybody. Object to the argument.
THE COURT: Overruled.

(Emphasis added.)

The law defining proper jury argument is so well established as to be immediately familiar:

To receive the stamp of approval of this court, jury arguments need to be within the areas of: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement.

Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973) (citations omitted); see also Todd v. State, 598 S.W.2d 286, 296-97 (Tex.Crim.App.1980).

In the instant case, no evidence was presented at any point in trial that there were elderly people in appellant's community or, indeed, any witnesses to the offense other than those testifying. Furthermore, no showing was made that the appellant or “his type” had scared such people. Nothing defense counsel presented invited such argument. The prosecutor’s argument is clearly unrelated to the evidence or defense arguments, and cannot be considered, even remotely, a plea for law enforcement.

“It is well settled that the prosecutor may not imply that witnesses have been frightened from the courtroom by the defendant.” Johnson v. State, 662 S.W.2d 368, 369 (Tex.Crim.App.1984); Thomas v. State, 519 S.W.2d 430, 431 (Tex.Crim.App.1975). “To argue such facts, unsupported by the evidence, is to inject new and harmful facts alluding to conduct of the appellant for which he is not on trial.” Johnson, 662 S.W.2d at 370 (quoting Thomas, 519 S.W.2d at 431). “A jury argument must either be extreme or manifestly improper or inject new and harmful facts to [155]*155be reversible. Thomas, 519 S.W.2d at 431.

The argument herein is unquestionably improper as an injection of factual assertions not found in, or deducible from, the evidence.

The range of punishment, depending on the jury’s findings with respect to enhancement paragraphs, was confinement for no less than 5, 15, or 25 years to a maximum of 99 years or life. The jury assessed punishment at 75 years. It would accordingly be difficult to say that the error had no effect on the punishment assessed. See Irving v. State, 573 S.W.2d 5, 6 (Tex.Crim.App.1978).

The first ground of error is sustained.

By his second ground, appellant asserts error in the trial court overruling his objection to the prosecutor's comment on appellant’s failure to call witnesses to testify on his behalf at the punishment phase.

The pertinent portion is as follows:

PROSECUTOR: Who did he bring in here to tell you that he ought, you ought to have a little sympathy on him? Did he bring anybody whatsoever, a rabbi, a priest, preacher? Did he bring any kind of folks other than his sister? Did he bring his momma, daddy? Didn’t bring anybody in the community to tell you, give old Robert Earl a chance. He didn’t bring anybody. He did — not one sole [sic] did he bring. He had a right to bring those people. We talked about that in Voir Dire. Not one did he bring.
DEFENSE COUNSEL: Object to the argument tending to place the burden on the Defendant to produce evidence in his own behalf.
THE COURT: Overruled.

Similar jury arguments have been considered in Mosley v. State, 686 S.W.2d 180 (Tex.Crim.App.1985), and McKenzie v. State, 617 S.W.2d 211 (Tex.Crim.App.1981). In both cases, the trial courts sustained objections and instructed the juries to disregard. See Mosley, 686 S.W.2d at 183; McKenzie, 617 S.W.2d at 218-19. In McKenzie, the court held the argument improper and reversible as both outside the record and an injection of personal opinion. The court reiterated its inability to speculate on the effect the argument had on the punishment assessed. See McKenzie, 617 S.W.2d at 221; Irving, 573 S.W.2d at 6.

In Mosley, the court held that the “argument presents a very close question as to its propriety,” but “in the context in which it was said, it is not improper.” Mosley, 686 S.W.2d at 184. The court distinguished Mosley from McKenzie in two respects. First, the inference of the Mosley remarks, in their context, was “not that these people actually existed, but that appellant did not call anyone at all to testify in his behalf.” Mosley, 686 S.W.2d at 184. Second, the McKenzie remarks “detailed what the witnesses might say,” whereas the Mosley

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Bluebook (online)
706 S.W.2d 153, 1986 Tex. App. LEXIS 12192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/person-v-state-texapp-1986.