Bonner v. State, B14-90-00782-CR

• Decision Date: 21 November 1991
• Docket Number: No. B14-90-00782-CR,B14-90-00782-CR
• Citation: 820 S.W.2d 25
• Parties: Charles Edward BONNER, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 25

820 S.W.2d 25

Charles Edward BONNER, Appellant, v.The STATE of Texas, Appellee.

No. B14-90-00782-CR.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 21, 1991.

Discretionary Review Refused

March 18, 1992.

Stanley G. McGee, Angleton, for appellant.

Kelly McClendon, Angleton, for appellee.

Before PAUL PRESSLER, JUNELL and ELLIS, JJ.

OPINION

ELLIS, Justice.

Appellant, Charles Edward Bonner, appeals his judgments of conviction for two offenses of aggravated robbery.TEX.PENAL CODE ANN. § 29.03(Vernon 1989).The jury rejected appellant's not guilty plea and found him guilty as alleged in the indictment.The jury, after finding the enhancement paragraphs of the indictment to be true, assessed punishment on each conviction at 55 years in the Institutional Division of the Texas Department of Criminal Justice.The appellant assigns three points of error of the trial court: (1) failure to charge the jury on the lesser-included offense of misdemeanor theft; (2) allowing prosecutorial misconduct during closing argument; and (3) commenting on the weight of the evidence in the court's supplemental charge to the jury.We affirm.

On January 10, 1989, Charles Edward Bonner, appellant, entered a Wal-mart store in Pearland, Texas.Felix McIntyre, Wal-mart Loss Prevention/Security Guard, observed appellant putting merchandise into a paper bag and saw him leave the Wal-mart store without paying for the merchandise.McIntyre alerted Sybil Redick, assistant store manager, of the possibility of shoplifters.Appellant left the store with the merchandise and was stopped by McIntyre who asked him to go back inside.Appellant went back inside with the merchandise accompanied by McIntyre and Eric Dunihoo, the store manager.On their way to the back of the store to the security office, appellant told them he did not want to go and turned around to leave the store.

McIntyre and Dunihoo tried to persuade appellant to return to the store.When it became apparent appellant would not return, Redick telephoned the Pearland police.Bill Bartell, assistant store manager, was alerted to the situation and joined the other employees to try to help bring appellant back into the store.Bartell grabbed appellant's left arm and told him to come inside.Appellant told them he had a knife and reached in his pocket to get it.Appellant pulled a knife out of his back pocket with his right hand and opened the knife one-handed.Dunihoo yelled "knife" and grabbed appellant's right arm.Dunihoo and Bartell then wrestled with appellant causing appellant to drop the knife on the ground, and pinned appellant on some pallets of cinder blocks.Appellant was held until the police arrived on the scene.

Appellant's brother, U.L. Bonner, testified that, as this incident was occurring, he was waiting for his brother in a car in the Wal-mart parking lot.When he saw Dunihoo and Bartell struggling with his brother, he got out of the car, opened his knife and approached the scene.He asked the two men what was going on and they explained that his brother was caught shoplifting.When U.L. Bonner saw the police coming, he dropped his knife beside the pallet where appellant was being held.Contrary to the testimony of the Wal-mart employees, U.L. Bonner testified that he only saw what looked like a key chain in appellant's hands.He also identified as his own the knife which the State alleged was used by appellant during the incident.

In point of error one, appellant asserts the trial court committed reversible error by refusing to charge the jury on the lesser included offense of class-A misdemeanor theft.TEX.PENAL CODE ANN. § 31.03(Vernon 1989).An offense is a lesser included offense if "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; ..."TEX.CODE CRIM.PROC.ANN. art. 37.09(1)(Vernon 1981).Texas courts apply a two step analysis in determining whether a charge on a lesser included offense is required:

First, the lesser included offense must be included within the proof necessary to establish the offense charged.Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense.

Bell v. State, 693 S.W.2d 434, 439(Tex.Crim.App.1985)(citingRoyster v. State, 622 S.W.2d 442, 446(Tex.Crim.App.1981)).

In the present case, appellant was charged with aggravated robbery pursuant to TEX.PENAL CODE ANN. § 29.03(a)(Vernon 1989).Appellant asked that the charge on class-A misdemeanor theft also be given to the jury.Theft can be an offense established within the proof necessary to prove aggravated robbery.SeeCampbell v. State, 571 S.W.2d 161(Tex.Crim.App.1978)(en banc).Nevertheless, to convict a person of class-A misdemeanor theft, there must be evidence of the "value" of the property stolen.TEX.PENAL CODE ANN. § 31.03(e)(3)(Vernon 1989)(an offense is "a Class-A misdemeanor theft if the value of the property stolen is $200 or more but less than $750").Appellant states in his request for a class-A theft charge:

The evidence showed property was taken out of the building and there there [sic] a picture introduced of the property.Mr. McIntyre testified as to the value of the property; therefore, the evidence of theft is raised--theft is raised by the evidence.

The picture appellant refers to does not state the value of the property.Also, McIntyre only testified that the picture showed "tennis shoes and cigarettes and things."At no time in his testimony did he state the value of the stolen merchandise.Appellant presented no other evidence at trial, nor did the State, as to the value of the property stolen which is a required element of class-A misdemeanor theft.As a result, appellant could not have been found guilty of class-A misdemeanor theft which must be shown to meet the second prong of the Royster test.Bell v. State, supra at 439(citingRoyster, supra at 446).Failing the Royster test, the court properly refused to include a charge on the lesser included offense of class-A misdemeanor theft.SeeMarras v. State, 741 S.W.2d 395, 405-6(Tex.Crim.App.1987)(a charge on the lesser-included offense of voluntary manslaughter was properly refused by the trial court, because there was no evidence of sudden passion);Sanders v. State, 664 S.W.2d 705, 709(Tex.Crim.App.1984)(defendant not entitled to charge of class B misdemeanor theft as lesser-included offense of theft from person because the value of the property was an essential element of the class B misdemeanor theft and no evidence of its value was presented).Appellant's first point of error is overruled.

In point of error two, appellant asserts the trial court erred by improperly allowing the prosecutor to attack the defense attorney during the State's closing argument at the guilt/innocence phase of the trial.Appellant's claim is that the State was striking at appellant over the shoulders of his attorney and as a result he was denied a fair trial.

There are four permissible areas of jury argument: "(1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response to the defendant's argument, or (4) a plea for law enforcement."Landry v. State, 706 S.W.2d 105, 111(Tex.Crim.App.1985)(citingHughes v. State, 563 S.W.2d 581(Tex.Crim.App.1978)).If the argument complained of does not fit into one of these four categories, the improper jury argument will not constitute reversible error unless "in light of the record as a whole the argument is extreme or manifestly improper, it is violative of a mandatory statute, or injects new facts, harmful to the accused, into the trial proceedings."Brandley v. State, 691 S.W.2d 699, 712-13(Tex.Crim.App.1985).A prosecutor's comments impugning the integrity of the defense attorney has been found to be improper jury argument constituting reversible error.Bell v. State, 614 S.W.2d 122, 123(Tex.Crim.App.1981)(prosecutor argued that defense lawyer's "duty is to see that his client gets off even if it means putting on witnesses who are lying"; held jury instruction insufficient; error to deny mistrial);SeeSummers v. State, 147 Tex.Crim. 519, 521, 182 S.W.2d 720, 722(1944)("striking at appellant over the shoulders of his counsel" was held to be a denial of fair trial).

In the present case, the prosecutorial comments in rebuttal argument went as follows:

PROSECUTOR: I made some notes.They start out by saying, 'Mr. Bonner and I should apologize' and here is something about me having to prove something.He's right.I've got to prove the case.It's my burden of proof.That's why I get to go first and go last in the closing arguments and why I present the case first.I've got the burden of proof in this case.We've carried our burden of proof in this case.

He doesn't have to put on any evidence, when when [sic]he elects to put on evidence in the form of U.L. Bonner, a convicted felon, brothers, and lies--because that's what ...