Smith v. State

774 S.W.2d 280, 1989 Tex. App. LEXIS 1557, 1989 WL 63089
Court of Appeals of Texas·Decided June 8, 1989·No. No. B14-87-00485-CR·Published·Cited by 1 cases

Opinion

OPINION ON REHEARING

DRAUGHN, Justice.

In response to the State's Motion for Rehearing, we stayed this appeal and remanded this cause to the trial court for a determination of whether the appellant had requisite notice of the State’s intention to seek an affirmative finding on use of a deadly weapon. The trial court has since entered Findings of Fact and Conclusions of Law in this regard. However, the Court of Criminal Appeals in two recent opinions modified the notice requirements in such cases so as to be determinative of this issue. We therefore withdraw our earlier opinion of August 11, 1988, and substitute this opinion which applies the new standards laid down by the Court of Criminal Appeals to the facts of this case.

Appellant was convicted by a jury of the offense of attempted capital murder. The jury also made an affirmative finding on use of a deadly weapon. The jury assessed punishment of confinement for life in the Texas Department of Corrections. In five points of error appellant complains the trial court erred by permitting the prosecutor to elicit evidence of an extraneous offense, by submitting the parole charge required under Tex.CRIM.PROC.Code Ann. art. 37.07 § 4 (Vernon 1981), by overruling his objection to improper jury argument, and by submitting a special issue and making an affirmative finding on the use of a deadly weapon. We affirm the judgment of the trial court.

At approximately 6:30 p.m. on September 9,1986, Houston Police Officer David Neck was traveling southbound on Buffalo Speedway in a marked police unit. He observed a blue Cutlass in the northbound lane exceeding the speed limit. Officer Neck was able to see the driver’s face, and to determine he was not wearing a seat belt. Officer Neck made a u-turn and pursued appellant. Since he did not want to stop appellant before his radio cleared and he could inform the dispatcher, Officer Neck continued to follow appellant. He noticed the sticker designating the month of expiration was missing from the Cutlass license plate.

When the radio cleared, Officer Neck informed the dispatcher of his location and Cutlass’s license number. He then pulled appellant over to the roadside. As Officer Neck approached the vehicle, he noticed the driver’s seat was in a reclining position. Just as he reached the door on the driver’s side, the seat came forward, and the door sprang open. Officer Neck saw the flash of a gun barrel, heard a bang, and fell to the ground wounded. As the blue Cutlass sped away, Officer Neck crawled to his police unit and radioed information on his situation, providing a description of appellant and the vehicle.

Officer Richard Salter was on duty at the time of the shooting. Within minutes of the incident he observed a blue Cutlass, driven by a black male fitting appellant’s description. The driver exited the vehicle and avoided apprehension by running into a nearby apartment complex. Further investigation of the vehicle revealed it had been stolen earlier in the day, and appellant’s fingerprints were found on it. Approximately one month later, appellant was apprehended at a Houston-area hotel. Appellant’s trial and conviction of attempted capital murder and life sentence followed.

In his first point of error, appellant complains of testimony elicited from William Steen. Steen testified he was an old friend of appellant’s. After the shooting, Steen had twice encountered appellant at a drugstore. Steen stated he knew appellant was wanted by police, so was surprised to see him the second time. Steen asked appellant “What’s the deal.” Appellant told Steen he did what he had to do, because he didn’t want to go back to jail.

Appellant objected to this as evidence of an extraneous offense. The State made no effort to go into any specifics of the prior [282]*282offense. The State offered the statement made to Steen to establish appellant’s motive, to provide the jury with an explanation for an otherwise meaningless shooting. In the context of its use, the probative value of the testimony was not outweighed by unfair prejudice. Soffar v. State, 742 S.W.2d 371, 377 (Tex.Crim.App.1987); Hughes v. State, 563 S.W.2d 581, 589 (Tex. Crim.App.1978); Morrow v. State, 735 S.W.2d 907 (Tex.App.—Houston [14th Dist.] 1987, pet. ref’d). Point of error number one is overruled.

In points of error two and three, appellant contends the trial court committed harmful error by including the parole charge mandated by statute at the time of trial. The Court of Criminal Appeals has now ruled Tex.Code CRImPROC. art. 37.07 § 4(a) unconstitutional. Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988). Submission of the parole charge is reversible error, unless we find that the error made no contribution to appellant’s punishment. Tex.R.App.P. 81(b)(2).

The jury was presented overwhelming evidence that appellant intended to cold-bloodedly kill a police officer who stopped him for a traffic violation. The jury was aware appellant was driving a stolen car at the time of the shooting. The jury was also aware that, between 1982 and 1985, appellant had been convicted of possession of a controlled substance, evading arrest, and three different charges of carrying prohibited weapons, one including a “sawed-off” shotgun.

Further, the trial court specifically instructed the jury not to consider the manner in which the parole law may be applied to appellant. The trial court also instructed the jury the parole law was the exclusive jurisdiction of the Governor and the Board of Pardons and Parole, and must not be considered by them in determining appellant’s punishment. In the absence of evidence to the contrary, we may presume the jury followed the trial court’s instruction. Rose, 752 S.W.2d at 554. Accordingly, we find, beyond a reasonable doubt, the submission of the parole charge did not contribute to appellant’s punishment. Points of error two and three are overruled.

Appellant’s fifth point of error alleges the prosecutor committed egregious error when he attempted to explain the parole charge during his final argument. Appellant made no such objection at the time of trial. Thus, he has waived any error unless the argument of the prosecutor was so prejudicial that no instruction could have cured the harm. Green v. State, 682 S.W.2d 271, 294 (Tex.Crim.App.1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985). Further, since isolated sentences taken out of context may take, on a meaning different from that understood by the jury, we must view the alleged error in the context of the entire argument. Mosley v. State, 686 S.W.2d 180, 183 (Tex.Crim.App.1985); Henson v. State, 683 S.W.2d 702, 704 (Tex.Crim.App.1984).

The prosecutor told the jury that because of the deadly weapon finding, if sentenced to life, appellant would have to serve at least twenty calendar years before he could be considered for parole. But unlike the argument in Clay v. State,

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Smith v. State, 774 S.W.2d 280, 1989 Tex. App. LEXIS 1557, 1989 WL 63089 (Tex. Ct. App. 1989).

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