Wooten v. State

817 S.W.2d 87, 1991 Tex. App. LEXIS 1326, 1991 WL 79990
Court of Appeals of Texas·Decided May 17, 1991·No. No. 12-89-00209-CR·Published

Opinion

COLLEY, Justice.

Appellant Henry Walter Wooten was convicted of aggravated possession of cocaine by a jury who assessed his punishment at seventy years confinement and a $15,000 fine pursuant to former Tex.Rev. Civ.Stat.Ann. art. 4476-15, section 4.04, subsections (a), (c) and (d).1

[88]*88Appellant presents thirteen points of error. By his sixth point of error he contends that the court erred in overruling his objection to an argument made by the prosecutor at the guilt-innocence phase, to wit:

Well, that Cocaine was offered [into] evidence, that Cocaine was admitted by this court. The judge heard the same testimony ya’ll heard and found that the search was valid, that everything was done proper.2 (Emphasis added.)

Defense counsel objected as follows:

Your Honor, I object to that. He is trying to take it out of the province of the jury. It’s in the Charge for them to decide and he’s talking about something that’s outside the record.

The court overruled the objection.

Appellant claims specifically that the error committed was the injection into evidence before the jury, over his objection, of unsworn testimony. He alleges that said testimony, in effect, bolstered the State’s witnesses regarding the warrantless search of his car. Inherent in both appellant’s objection and his sixth point of error is the contention that the remarks of the prosecutor were totally inconsistent with the court’s law instructions to the jury as set forth in the charge. The jury was instructed that, before they could consider the evidence of the search and seizure of the cocaine in appellant’s case, they must first find beyond a reasonable doubt from the evidence before them that the warrantless search of the car was lawful.

In response, appellee argues that the remarks were in answer to defense counsel’s previous arguments invoking constitutional safeguards against warrantless searches and seizures. In its brief, the appellee quotes a portion of its subsequent argument (following the court’s action overruling appellant’s objection):

Ladies and Gentlemen, what I’m telling you is that the problem is here that you have a Cocaine dealer sitting over there telling you that the police officer didn’t do the right thing in this case. But what you have got here is a Jury Charge written by the Judge that’s telling you that a police officer has a right to stop somebody and search their car and look and see what they’ve got on them without a search warrant under certain conditions.

It is true that the last quoted argument differs from the earlier argument complained of by appellant that the trial judge, upon hearing the same evidence, “found that the search was valid, that everything was done proper [by the searching officers].” However, the subsequent argument does not retract the earlier argument. Moreover, appellee’s assertion that the improper argument was a proper response to appellant’s argument about constitutional protection against unreasonable searches and seizures is untenable. The trial judge, obviously concluding that the evidence raised issues respecting the reasonableness of the search, pursuant to Tex.Code Crim. Proc.Ann. art. 38.23 (Vernon Supp.1991), submitted the search and seizure questions to the jury for their determination, unfettered by any consideration of what the trial judge’s opinion on those facts was. The charge, in fact, also instructed the jury that they were “not to draw any inference from ...” the court’s rulings on the admissibility of evidence and further instructed the jury that, in “admitting evidence to which an objection is made, the Court does not determine what weight should be given such evidence_” The charge likewise informed the jury that they should “wholly disregard” any opinions they perceive to have been expressed by the trial judge during the trial. And, in accordance with traditional and applicable rules of procedure, the jury was further instructed by the trial court that they were “the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to their testimony....”

We conclude that the argument complained of was improper because it wrongfully invited the jury to consider, contrary to the charge, the trial judge’s conduct in admitting the State’s evidence as an ex[89]*89pression of the trial judge’s opinion about the facts and the weight to be given the testimony of the State’s witnesses. The judge erred in overruling appellant’s objection to the prosecutor’s argument and we are unable to conclude beyond a reasonable doubt that this trial error made no contribution to appellant’s conviction or punishment, as required by Tex.R.App.P. 81(b)(2).3 See Griffin v. State, 779 S.W.2d 431, 433 (Tex.Cr.App.1989). In this case, the trial judge, by overruling appellant’s objection to the quoted argument above, gave his stamp of approval to the appellee’s evidence of probable cause, exigent circumstances and the reasonableness of the war-rantless search and seizure of the cocaine. We, therefore, sustain appellant’s sixth point of error.

The appellant was entitled, under the charge, to have the jury’s independent consideration of and decision regarding the credibility of appellee’s witnesses and the weight to be given their testimonies. We are persuaded, after careful consideration of the entire record, that the error was calculated to have great impact on reasonably intelligent jurors, thus creating a reasonable possibility that the error made a strong contribution to the guilty verdict as required for a showing of “harmful” error under rule 81(b)(2). In reaching that conclusion, we have carefully applied “the methodology” found in Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Cr.App.1989), and Belyeu v. State, 791 S.W.2d 66, 74, 75 (Tex.Cr.App.1989). See also Griffin v. State, 779 S.W.2d 431, 433, n. 2 (Tex.Cr.App.1989).

Our ruling on appellant’s sixth point of error requires reversal; but, since a retrial is likely, we deem it proper to consider and discuss appellant’s remaining points of error involving questions which are likely to arise in a new trial.

Under his second, third, fourth and fifth points of error, the appellant complains of certain arguments made by the prosecutor at the punishment phase of the trial. Appellant’s second, third and fourth points of error involve what appellant claims to be improper arguments about the effect of parole laws. These arguments, the appellant’s objections, and the court’s rulings thereon are shown by the following record excerpt:

[Appellee’s argument]: But you know what the most interesting thing is and why a long sentence is absolutely essential in this case is the fact that ... this Defendant got convicted in August of 1987 and got sentenced to ten years in the Texas Department of Corrections. Ten years in August of 1987 and where is he on May 1 of 1987.4
[Defense counsel]: I object to that, Your Honor, as a comment on the parole law.

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Wooten v. State, 817 S.W.2d 87, 1991 Tex. App. LEXIS 1326, 1991 WL 79990 (Tex. Ct. App. 1991).

817 S.W.2d 87 (Wooten v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Chapman v. California
386 U.S. 18 (Supreme Court, 1967)
Harris v. State
790 S.W.2d 568 (Court of Criminal Appeals of Texas, 1989)
Griffin v. State
779 S.W.2d 431 (Court of Criminal Appeals of Texas, 1989)
Belyeu v. State
791 S.W.2d 66 (Court of Criminal Appeals of Texas, 1989)
Beathard v. State
767 S.W.2d 423 (Court of Criminal Appeals of Texas, 1989)