Meyer v. State, 40413

• Decision Date: 14 June 1967
• Docket Number: No. 40413,40413
• Citation: 416 S.W.2d 415
• Court: Texas Court of Criminal Appeals
• Parties: Gene Olwyn MEYER, Appellant, v. The STATE of Texas, Appellee.

Page 415

416 S.W.2d 415

Gene Olwyn MEYER, Appellant, v. The STATE of Texas, Appellee.

No. 40413.

Court of Criminal Appeals of Texas.

June 14, 1967.

Jones, Blakeslee, Minton, Burton & Fitzgerald, by Perry L. Jones, Austin, for appellant.

Thomas D. Blackwell, Dist. Atty., Robert A. Huttash, Asst. Dist. Atty., Austin, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is robbery by assault; the punishment, enhanced by two prior convictions for a felony less than capital, life.

The grounds of error relate to the closing argument of the district attorney at the trial on the issue of guilt or innocence.

The first ground is that the trial court erred in failing to grant a motion for mistrial based upon the district attorney's argument wherein appellant was referred to as 'a professional,' and the robbery was referred to as a 'professional type of robbery.' It is contended that this argument was calculated to prejudice the jury by indicating to them that appellant had committed other offenses.

The state contends that the argument was a legitimate inference based on the facts; that the evidence indicated that appellant went to the scene of the crime before the robbery and observed the surroundings to plan his course of action; that appellant disguised himself by wearing large dark glasses and a red jacket which he apparently discarded soon after the robbery; that he attempted to jerk the pay phone from the wall to prevent the attendant from calling the police after the robbery; that he had the attendant lie on the floor, telling him to lie there for ten minutes; that he parked his car away from the service station behind a clump of trees to prevent a passerby from identifying it; that he used a 30.30 rifle; and that he conducted the robbery during the early morning hours when there was only one attendant at the station and when there was little likelihood of other witnesses being present.

Appellant argues that it is obvious that the robbery was not committed by a professional; that footprints and car tracks were left in the mud at the scene of the crime; that the robber allowed his sunglasses to be knocked off during the course of the robbery; that the robber was unsuccessful in his attempt to jerk the phone off the wall; that he apparently threw his jacket away three blocks from the scene of the crime where the police easily located it lying on the pavement. It is argued that the only impression which the jurors could have gotten from reference to appellant as a professional was that he had committed similar crimes in the past.

A motion for mistrial on this point was made after the district attorney had made seven references to the robbery as the work of a professional, or to appellant as a professional robber, to some of which there was no objection.

The court instructed the jury in his charge and during the argument that they were not to take what either attorney said as evidence, but were to consider only what came from the witness stand.

All arguments must be appraised in the light of the entire record and the verdict rendered. Cotton v. State, 113 Tex.Cr.R. 188, 19 S.W.2d 319. Although whether the robbery was a professional one is arguable, the prosecutor's deduction from the evidence was a reasonable one. No reversible error is presented. Siwakowski v. State, Tex.Cr.App., 387 S.W.2d 669; Christesson v. State, 172 Tex.Cr.R. 27, 353 S.W.2d 218; Jones v. State, 352 S.W.2d 270; Sommers v. State, 165 Tex.Cr.R. 575, 310 S.W.2d 106; Miller v. State, 163 Tex.Cr.R. 381, 292 S.W.2d 108; Hay v. State, 155 Tex.Cr.R. 604, 237 S.W.2d 987.

The second point of error is that the trial court erred in not granting appellant's motion for mistrial following a statement by the district attorney during the same argument to the jury which it is contended was a comment on appellant's failure to testify.

J. I. McCray, the attendant at the robbed service station, was the only eyewitness to the crime for which appellant was on trial. Appellant did not take the stand to...