Anderson v. State, 50139

• Decision Date: 09 July 1975
• Docket Number: No. 50139,50139
• Court: Texas Court of Criminal Appeals
• Parties: Charles Wayne ANDERSON, Appellant, v. The STATE of Texas, Appellee.

Page 20

525 S.W.2d 20

Charles Wayne ANDERSON, Appellant, v. The STATE of Texas, Appellee.

No. 50139.

Court of Criminal Appeals of Texas.

July 9, 1975.

James O. Terrell, Waco, for appellant.

Martin D. Eichelberger, Dist. Atty., Lynn Malone and Edward Springer, Asst. Dist. Attys., Waco, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for murder; the appellant's punishment assessed by a jury is imprisonment for five thousand years. The judgment must be reversed because of the improper jury argument made by the Assistant District Attorney.

The evidence is that the appellant, after drinking beer and taking 'pills,' armed himself with a sawed-off shotgun and knives, and then he broke into the house where his estranged wife, their eleven year old son, Mervin, and the brother of the appellant's wife were living. While she was in bed, the appellant shot his wife three times with a .12 gauge shotgun; it tore her body apart. He followed his son from the house into the yard and shot him twice with the shotgun, but the son recovered and was a witness at the trial. The appellant also cut the throat of his brother-in-law almost from ear to ear, but he too recovered. The horrible facts of this crime did not license the Assistant District Attorney to transgress the rules governing the trial of criminal cases in order to obtain from the jury a five thousand year verdict. The appellant was represented by court-appointed counsel who was required to exert his best efforts in defending a most difficult case.

The appellant complains in five separate grounds of error about the following part of the argument made by the Assistant District Attorney during the guilt-innocence phase of the trial:

'(ASSISTANT DISTRICT ATTORNEY WARD CASEY): And I can sympathize with Mr. Terrell, he has got a case that there just isn't any answer for him. He doesn't have guts enough to come up here and think of one theory to tell you, because there is not any way to excuse, there is no way to extenuate, there is no way to justify the facts in this case. So, he come up here with this little question job. And I have never seen anybody weak enough to come up and mealymouth a jury like that and don't even have guts enough himself to say the man is not guilty. He won't even say that himself, his lawyer, but he wants you to go up there and say it.

'MR. TERRELL: Your Honor, I am going to have to object to that. I am going to object first of all to Mr. Casey abusing me as counsel, striking at my client over my shoulder, and ask that you instruct the jury to disregard that. I am also going to have to object because it is not my duty in this case to say whether this man is guilty or innocent. It is solely the province of the jury, and I ask that they be so instructed.

'THE COURT: Ladies and gentlemen of the jury, you will base your verdict on the testimony that you have heard, and not what the attorneys say.

'MR. CASEY: All right, now, let's talk about when Mr. Terrell got out of the record. Mr. Terrell told you all about Mervin being coaxed, wood-shedded, and stories being embellished on, told it to all of his kin folks, and Mr. Casey has wood-shedded and trained him. Did you hear any testimony to that effect? Did you hear him ask that question? He gets up here, and he didn't have the guts enough to ask that boy, because he knew that he was telling the truth.

'MR. TERRELL: Your Honor, I am going to object. Excuse me, Mr. Casey. I believe it is in the record that I did ask the witness if he was over here with Mr. Casey the other day, and Mr. Casey was going through this with him. I believe that is in the record.

'THE COURT: The jury heard the testimony.

'MR. TERRELL: Okay.

'MR. CASEY: You heard it first from us, ladies and gentlemen, didn't you? You heard from us that I had brought Mervin over here, and I let that little boy sit in this witness chair and see this courtroom, and he was scared to death. You saw him shaking like a leaf. I was doing anything I could to make it easier on that boy. And I introduced him to him, and I was kidding around, and I said, 'He's the bad guy, Mervin'--you know--just kidding. And Terrell knows that is the truth. If it wasn't the truth, he would be up objecting saying it was a lie. He knows it's true, and he knows that is what went down and that's all that went down over here. And there is nothing wrong with me talking to Mervin. I talked to Mervin twice; once at the hospital, and once in my office when I brought him over here and showed him the Courtroom. And we didn't have any little dress rehearsal, ladies and gentlemen, like he would have you believe.

'And I'm going to tell you something that happened at the hospital, since we're on this. I talked to--

'MR. TERRELL: Your Honor, I am going to object to Mr. Casey going outside the record.

'MR. CASEY: Your Honor, it is all invited by what he told this jury.

THE COURT: I'll sustain the objection.

'MR. TERRELL: I ask that you instruct the jury to disregard any testimony from Mr. Casey about what may have happened at the hospital.

'THE COURT: He hasn't made any comments about what happened, Mr. Terrell.

'MR. TERRELL: Okay.

'MR. CASEY: You know, he got up here and testified to you when he wasn't under oath about being embellished, Grandmaw told him how to tell the story, Aunt Hazel told him how to tell the story, Donald Ray told him how to tell the story, and Mr. Casey done all of this--

'MR. TERRELL: Your Honor--

'MR. CASEY:--then when I try to answer him, I don't get to do it, because I'm not a defendant.

'MR. TERRELL: Your Honor, I object to that most strenuously. That is improper argument, It is argument designed only to inflame the minds of the jury. It has nothing to do with the facts material to this case. I ask that the jury be--

'THE COURT: Overruled.

'MR. CASEY: Thank you, Your Honor. May we have credit for these frivolous objections over here that counsel keeps making?

'THE COURT: I'll give you credit for the time.

'MR. CASEY: See, you can think about that, ladies and gentlemen. He doesn't want you to think about it. He wants to pull the wool over your eyes, but you can think about it. He won't argue the law, and he won't argue the facts; all he will do is get up here and lie to you.

'MR. TERRELL: Your Honor, I object to that.

'THE COURT: I sustain the objection.

'MR. TERRELL: I ask you--

'THE COURT: I instruct the jury to disregard it.

'MR. TERRELL: And I ask for a mistrial on that, Your Honor.

'THE COURT: Motion...