Sawyer v. State

877 S.W.2d 883, 1994 Tex. App. LEXIS 1349, 1994 WL 245488
CourtCourt of Appeals of Texas
DecidedJune 9, 1994
DocketNo. 01-93-00871-CR
StatusPublished
Cited by8 cases

This text of 877 S.W.2d 883 (Sawyer 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
Sawyer v. State, 877 S.W.2d 883, 1994 Tex. App. LEXIS 1349, 1994 WL 245488 (Tex. Ct. App. 1994).

Opinion

OPINION

HEDGES, Justice.

A jury found appellant, Bud Jay Sawyer, guilty of capital murder, and the trial court assessed punishment at life in prison. In three points of error, appellant complains that the trial court erred in permitting the prosecutor to make improper jury arguments. We affirm.

Facts

On the evening of November 16,1992, Lee Rayford was driving south of Parker Street in Houston, Texas. Rayford was a street dealer of crack cocaine. Sometime between 10:00 and 10:80 p.m., Rayford offered a ride to Eric Williams, who was walking along the side of the street. Williams got in the car with Rayford and a woman named Dee Dee. As the three neared the intersection of Parker and Shady Lane, Rayford saw appellant standing at a pay phone outside the Happy-land convenience store. Rayford parked behind appellant’s truck. Rayford got out of his truck and sold appellant a rock of cocaine .in exchange for $20 in food stamps. After-wards, Rayford dropped Williams at the Park Square Apartments.

Around midnight, Williams was walking to his mother’s house when Rayford again offered him a ride. Williams got into the back seat of the car. Rayford was driving, and George Smith was riding in the front passenger’s seat. As the three men were driving, Rayford again saw appellant’s truck. Ray-ford flashed his lights to get appellant’s attention and stopped near appellant’s truck.

Appellant asked Rayford if he had more drugs. Rayford replied that he did and asked if appellant had any money. Appellant said that he had $20 and then got out of his truck. Williams testified that when he got out of his truck, appellant had a gun in his hands. Appellant walked over to Rayford’s car and leaned inside the passenger’s side window. In a threatening tone, appellant told Rayford he wanted more cocaine for his money than he had received the last time. Williams testified that appellant was clearly under the influence of cocaine: his eyes were glazed and bloodshot, his body was shaking slightly, and he obviously craved more cocaine.

After Rayford and appellant argued for two or three minutes, appellant said that he was going to kill all three occupants of the car. Appellant then shot Smith twice in the chest, shot Rayford twice, and shot Williams once below his right hip. Rayford and Smith died. Williams survived and testified at trial. Appellant testified that he acted in self-defense.

Standard of review

Permissible jury argument is limited to four categories: (1) summary of the evidence; (2) reasonable deductions from the evidence; (3) response to opposing counsel’s argument; or (4) plea for law enforcement. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988); Bell v. State, 724 S.W.2d 780, 802-03 (Tex.Crim.App.1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). Reversible error occurs only when statements made to the jury are so extreme and manifestly improper, or when new facts harmful to the accused are injected into the proceedings, so that the defendant is deprived of a fair and impartial trial. McGee v. State, 774 S.W.2d 229, 238 (Tex.Crim.App.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1535, 108 L.Ed.2d 774 (1990).

Appellant acknowledges that defense counsel did not lodge proper or timely objections to any of the prosecutor’s remarks of which he now complains on appeal. Therefore, unless the arguments of the prosecutor are so [885]*885prejudicial that an instruction from the trial court would not have cured the harm, defense counsel’s failure to timely object waives any error. Curtis v. State, 640 S.W.2d 615, 618 n. 4 (Tex.Crim.App.1982); Plunkett v. State, 580 S.W.2d 815, 823 (Tex.Crim.App.1979) (op. on reh’g); see McKay v. State, 707 S.W.2d 23, 37 (Tex.Crim.App.1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986).

Point of error one

In his first point of error, appellant complains that the prosecutor accused the defense counsel of arguing to the jury that it was permissible to kill “bad guys” who had been in trouble with the law. He asserts that in permitting this error, the trial court allowed the prosecutor “to strike at the appellant over defense counsel’s shoulders.” This arcane language is lifted from Summers v. State, 147 Tex.Crim. 519, 182 S.W.2d 720, 722 (1944), and has been quoted in many subsequent cases. McGee, 774 S.W.2d at 238. In plain English, appellant is complaining that the prosecutor was improperly allowed to attack him by contending that trial counsel’s argument of self-defense was made insincerely and in bad faith.

During jury arguments, appellant’s trial counsel repeatedly reminded the jury that the victims were drug dealers. He implied that their sale of drugs had corrupted appellant. He then argued:

Bud Sawyer had every reason in the world and especially Bud Sawyer had every reason in the world to be apprehensive at any time in the broad open daylight with a person such as Lee Rayford. I don’t mean that the man was necessarily inherently evil when he was a child, but whatever his life experiences had been the man got himself into trouble any number of times. As testified to by Sergeant King, he had been convicted, I believe, at least five or six, maybe not that many, offenses of resisting. Lee Rayford had been convicted on a weapons charge.
Now, do you believe Rayford with his background would be out in the early morning hours selling crack along with two other sellers of crack without being armed? That has got to be consistent with his history, that he had a pistol on him on the occasion in question.1
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Do you really believe, after getting a feeling perhaps for the character or personality from their testimony and the evidence in this case, that George Smith would hesitate to take a shot at you? Do you really believe from the evidence in this case that high on crack Eric Williams would not take a shot at you under the right circumstances?
Now, I am always, and perhaps you are too, fascinated by medical testimony. I want you to look at these pictures of the bodies. I know it may be revolting to you, but there are certain things on these bodies in these pictures having to do with tattoos or whatever they are that are basically indicative of the character of the people that were involved in this.
And I am not saying Bud Sawyer had any right to deliberately kill them. I am just saying by taking a look at their dead bodies closely you can see where Bud Sawyer might have been afraid of them under the circumstances.

Appellant takes exception with the following argument made by the prosecutor:

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Bluebook (online)
877 S.W.2d 883, 1994 Tex. App. LEXIS 1349, 1994 WL 245488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sawyer-v-state-texapp-1994.