Wilson v. State

747 S.W.2d 490, 1988 Tex. App. LEXIS 768, 1988 WL 31652
CourtCourt of Appeals of Texas
DecidedMarch 9, 1988
DocketNo. 09-87-164 CR
StatusPublished
Cited by3 cases

This text of 747 S.W.2d 490 (Wilson 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
Wilson v. State, 747 S.W.2d 490, 1988 Tex. App. LEXIS 768, 1988 WL 31652 (Tex. Ct. App. 1988).

Opinion

OPINION

BROOKSHIRE, Justice.

Appellant was indicted for the offense of burglary of a building allegedly occurring in Beaumont on November 1, 1986. The indictment had enhancement paragraphs alleging that the Appellant had been convicted of three prior felony offenses.

The jury found the Appellant guilty of the offense of burglary of a building. The jury then found the enhancement paragraphs to be true and assessed the Appellant’s punishment at 50 years confinement.

Appellant’s first point for review states that reversible error occurred when the State’s attorney referred to matters outside the record in his argument. The Appellant had zealously urged a vigorous defense that he was not the person who actually committed the burglary. He was, as he contended, heavily intoxicated and was in the wrong place at the wrong time. In fact, the Appellant, through the testimony of one Stephen Livings, demonstrated that Livings was the person who committed the offense. The Appellant presented the testimony of one Slaughter Moore. Moore testified that the Appellant was, in fact, intoxicated and that he and the Appellant had been drinking together on the day in question.

The main thrust of the defense of the Appellant depended on the credibility and the believability of these two witnesses. The credibility of both witnesses was strongly attacked by the State. The prosecutor told the jury that these two men had been placed together in a holding cell and strongly argued certain discrepancies in their respective testimonies. Appellant basically argues that the statement that the two witnesses were in the same holding cell was necessarily outside of the record and was made in an effort to inflame and prejudice the minds of the jurors. Appellant further argues that his objection was overruled so that the error could not be corrected by any subsequent instruction to the jury to disregard the argument.

[492]*492The State concedes that the attacked portion of the prosecutor's argument was outside the record but, upon a careful analysis, the same record discloses that such argument does not present reversible error. The State argues that where, as here, a timely objection was overruled; nevertheless, the Appellant is not entitled to reversal of the judgment because, in light of the record as a whole, the argument is not so extreme and not so manifestly improper as to be violative of a mandatory statute or actually injects new facts harmful to the accused in the trial proceeding. The State cites Todd v. State, 598 S.W.2d 286 (Tex.Crim.App.1980); Hall v. State, 682 S.W.2d 608 (Tex.App.—Beaumont 1984, no pet.). The challenged argument did not specifically and affirmatively violate a mandatory statute. The argument does inject a new fact before the jury. However, we conclude that the record, as a whole, clearly shows that such new injected fact or contention was not “harmful to the accused”. The State vehemently contends that its own case and evidence established an overwhelming conviction of Appellant’s guilt and that the testimony of the Appellant’s key witnesses was patently preposterous and incredible on its face. The State argues that its own piercing cross-examination of the key defense witnesses; namely, Stephen Livings, Ulysses Brown and Van Slaughter Moore, demonstrated in a glaringly clear manner that the testimony of these three witnesses was simply incredible.

An officer named Hogge was dispatched, on the date in question, to a probable burglary actually in progress at Poncho’s Paint and Body Shop. Upon arriving, Hogge looked into the well-lighted office and saw the Appellant, who was prowling about the office. Hogge definitely and positively identified the Appellant as the man he saw inside Poncho’s Shop. The Appellant ran from the building. Hogge pursued him hotly. Hogge saw that the Appellant was carrying a yellow film bag which was recovered at the scene of the arrest. Hogge also found the “Redskins” cap which he had seen being worn by the Appellant while the accused was inside Poncho’s Paint and Body Shop; the cap had flown off Appellant’s head. Later, when Hogge and another officer, named Froman, entered a certain washateria, the Appellant sprang up from a back row of washers. Appellant was very sweaty and breathing hard. The yellow bag and some loose change was recovered from the floor area where the Appellant had been hiding. The “Redskins” cap had been recovered where Hogge had seen it fly off the Appellant’s head.

We have reviewed the cross-examination of Hogge concerning Ulysses Brown. Brown stated that the Appellant “had just run into the washateria.” Hogge said the Appellant was not intoxicated. An officer, Sue Kelly, testified that she had recovered Appellant’s fingerprints from a certain peanut can in Poncho’s office.

Rudy Carrillo, being the proprietor of Poncho’s Paint and Body Shop, testified that he had not given consent to anyone to enter. He identified the “Redskins” cap as having been in one of his office drawers. He also testified that the film in the yellow bag had definitely come from his own office. There was, of course, other compelling, probative testimony.

After reviewing and analyzing the testimony of Ulysses Brown, Officer Sue Kelly, Officer David Froman, Rudy Carrillo and others, including Van Slaughter Moore, Loretta Champagne, Grace Strange, Gerald Hayes, and Carla McBride, we conclude upon the whole record that it is impossible to seriously believe that the inadvertent remark of the prosecutor caused any harm to the Appellant. Hence, there is no reversible error. Phillips v. State, 701 S.W. 2d 875 (Tex.Crim.App.1985); Cannon v. State, 668 S.W.2d 401 (Tex.Crim.App.1984); Mathews v. State, 635 S.W.2d 532 (Tex.Crim.App.1982); Williams v. State, 607 S.W.2d 577 (Tex.Crim.App.1980); Hall v. State, 682 S.W.2d 608 (Tex.App.—Beaumont 1984, no pet.); Harris v. State, 624 S.W.2d 418 (Tex.App.—Eastland 1981 [661 S.W.2d 106]).

Justice Teague, in his opinion in Mathews, 635 S.W.2d at 540, above cited, quotes the following logical, compelling and appro[493]*493priate conclusions from the early case of Tweedle v. State, 29 Tex.App. 586, 16 S.W. 544 (1891, no pet.):

“To reverse in all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a case of any importance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true. (Tweedle, Id., 16 S.W. at p. 545).”

We overrule point of error one.

The Appellant advances that the trial court erred in admitting State’s Exhibit No. 18, which is a pen packet, into evidence at the punishment phase. It should be noted that the prior conviction which was reflected in State’s Exhibit 18 was not void.

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Bluebook (online)
747 S.W.2d 490, 1988 Tex. App. LEXIS 768, 1988 WL 31652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-state-texapp-1988.