Chapman v. State, 47717

• Decision Date: 09 January 1974
• Docket Number: No. 47717,47717
• Parties: Frankie Mae CHAPMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 237

503 S.W.2d 237

Frankie Mae CHAPMAN, Appellant, v. The STATE of Texas, Appellee.

No. 47717.

Court of Criminal Appeals of Texas.

Jan. 9, 1974.

Tom A. Boardman, Dallas, for appellant.

Henry Wade, Dist. Atty., John E. Rapier, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

JACKSON, Commissioner.

The conviction was for robbery by assault on a plea of not guilty before a jury; the punishment by the judge, 20 years.

The sufficiency of the evidence is not disputed. The facts as testified to by the alleged victim were: Hadnot was the manager of an apartment house. Late at night appellant, an admitted prostitute, came to his office and asked to borrow $10. He agreed to let her have $10 if she would have sexual relations with him. She agreed, he gave her the $10, they had sex relations, after which he went to the bathroom, but when he came out his billfold had been emptied of about $163. He took the money from her. In about 10 minutes she came back, broke the glass out of a window on the front porch and came in. When Hadnot came from the back of the apartment, appellant came towards him with a pistol, shot him three times, took the money from his pocket and left. Hadnot was taken to the hospital, but survived to testify from a wheelchair.

Appellant testified and denied the robbery. She said Hadnot took her money from her, and she was only recovering her own property when she shot him and took money from his pocket after a struggle outside the apartment. The jury resolved all disputes in favor of the story told by Hadnot.

First, appellant complains of the argument made by the prosecutor in his closing argument when he said:

'I would ask you to believe that I would not intentionally or knowingly be a party - - - to submitting perjured evidence before you.'

We agree that it is ordinarily improper for a prosecutor to vouch for the credibility of a witness during his argument. See Womack v. State, 160 Tex.Cr.R. 237, 268 S.W.2d 140 and Hickerson v. State, 162 Tex.Cr.R. 446, 286 S.W.2d 437.

However, if the argument in question was invited by argument of appellant's attorney, and was in reply thereto, no reversible error is shown. Hefley v. State, Tex.Cr.App., 489 S.W.2d 115, and Sennette v. State, Tex.Cr.App., 481 S.W.2d 827.

Two examples of previous argument made by appellant's counsel which seemed to bring into question the conduct and integrity of the prosecutor were:

'(1) '* * * I submit to you, ladies and gentlemen, that the information Mr. Whaley (prosecutor) had when he started this case, was completely different than what came out from the witness stand.'

'(2) 'They (prosecutors) don't want to have a struggle inside the apartment, because that doesn't go along with whatever the story that you want to accept that the complainant has."

Thus, it would appear that the argument complained of was invited and was in reply to the argument of appellant's counsel, and was not reversible error.

Secondly, complaint is made that the prosecutor argued to the jury that the arresting police officer had no doubt that the robbery had been committed. The objection was sustained, the jury instructed to disregard and motion for mistrial overruled.

The witness testified that Hadnot gave her a statement at the hospital that contained all of the elements of robbery, and even if he had related about the sexual intercourse, 'that would be robbery to you?' Answer: 'Yes, it would.'

We conclude that...