Fowler v. State

• Decision Date: 31 October 1973
• Docket Number: 46558,Nos. 46557,s. 46557
• Citation: 500 S.W.2d 643
• Parties: Truman Brooks FOWLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 643

500 S.W.2d 643

Truman Brooks FOWLER, Appellant, v. The STATE of Texas, Appellee.

Nos. 46557, 46558.

Court of Criminal Appeals of Texas.

Oct. 31, 1973.

Melvyn Carson Bruder, Tim K. Banner, Dallas, for appellant.

Henry Wade, Dist. Atty. and Wm. J. Teitelbaum, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

JACKSON, Commissioner.

The convictions were for burglary and assault with intent to murder, growing out of the same transaction; the punishment, 12 and 18 years, respectively. Both cases were tried together.

In his brief appellant presents to us four grounds of error, but since we have concluded that the case must be reversed and remanded on ground of error number four, we pretermit discussion of the others.

In his closing argument to the jury, the assistant district attorney said:

'I am certainly not going to prosecute a man that I don't feel in my own heart is guilty.

'DEFENSE ATTORNEY: We object to that, Your Honor, that is testimony and we are entitled to cross-examine him if he is going to say things like that.

'THE COURT: I overrule the objection. Keep your seat, counsel, you have had your say.

'DEFENSE COUNSEL: Note our exception, Your Honor.

'THE COURT: Go ahead, Mr. Eubanks.'

While counsel may draw reasonable deductions from the evidence, it is not permissible to inject their personal opinions into argument, lest they convey to the jury the idea that they have bases for their conclusions in addition to the evidence before the jury. Spinks v. State, 157 Tex.Cr.R. 612, 252 S.W.2d 159; Hickerson v. State, 162 Tex.Cr.R. 446, 286 S.W.2d 437. See also Bray v. State, Tex.Cr.App., 478 S.W.2d 89; Baldwin v. State, Tex.Cr.App., 499 S.W.2d 7 (1973).

If the court had sustained the objection and instructed the jury not to consider this argument, the error might not have resulted in reversal. Ramos v. State, Tex.Cr.App., 419 S.W.2d 359; Blackstock v. State, Tex.Cr.App., 433 S.W.2d 699; Reyes v. State, Tex.Cr.App., 388 S.W.2d 433.

We have examined the entire record and the argument of the defense attorney preceding the argument complained of, in the light of the State's contentions that such argument was invited and was in legitimate reply to the argument of defense counsel, but do not find that the record supports this conclusion.

For the error of the court in overruling the objection to the argument quoted, we reverse the judgments and remand the causes for new trials.

Opinion approved by the Court.

DOUGLAS, Judge (dissenting).

The majority reverses these two convictions because of what it holds to be improper argument by taking a statement out of context and not considering the evidence or the statements of the defense counsel preceding the argument of the prosecutor.

In passing upon cases, we should look to the whole record to see if there is reversible error and not to statements taken out of context. The facts adduced and the issues involved are potent factors in determining the soundness of the complaint. Durst v. State, 159 Tex.Cr.R. 466, 265 S.W.2d 118. See Vineyard v. State, 96 Tex.Cr.R. 401, 257 S.W. 548. In Palmer v. State, 148 Tex.Cr.R. 39, 184 S.W.2d 471, Judge Hawkins wrote:

'. . . It was said in Gatlin v. State, 113 Tex.Cr.R. 247, 20 S.W.2d 431, 435: 'It is the duty of this court, and the due and proper administration of justice demands, that not the words alone shall control, but, in estimating the argument of which there is complaint upon appeal, the nature of the offense, the evidence adduced, and the verdict rendered, are essential elements.' It follows that the same argument under certain circumstances would not be improper, or might be withdrawn, whereas, under other circumstances a contrary rule would obtain. In applying the principles suggested to the present case the entire record before us should be considered.'

The appellant was tried for the offense of burglary with intent to commit theft. The indictment alleged two prior burglary convictions for the purpose of enhancement. Only one of these convictions, which was stipulated, was utilized and his punishment was assessed at twelve years under Article 62, Vernon's Ann.P.C. He was also tried for assault with intent to murder arising out of the same transaction at the same time and his punishment was assessed at eighteen years.

Charles W. Kemp, the injured party, testified that the burglar alarm at the building of his retail lumber business in Dallas went off at approximately 3:00 o'clock in the morning and he took his double barrel 410 gauge shotgun and went to the store. After entering what he described as a well lighted building, he found an office window had been broken and a sledge hammer and other tools on his desk. He then went toward the next office and someone called out for him not to shoot. After stating that he would shoot if anyone came out, Kemp called the police. Someone then said to him that they were coming out. One of the two men ran toward another room, and the other man, later identified as the appellant, kept sticking his gun and his head around the corner. Each time Kemp would point his shotgun at the man he would then duck back. In the meantime, the appellant fired at Kemp twice, hitting him in the leg and in the shoulder about six inches from the heart.

Kemp had fired one shot at appellant and, realizing that he had only one shell left in his shotgun, backed out of the front door of the building. The appellant again fired at Kemp and said he was coming out. As he came out around the door, Kemp fired and thought he had hit him because the appellant hollered. The appellant's momentum caused him to run over Kemp, knocking him to the ground. The appellant also fell to the ground, got up and ran away. Kemp reloaded the gun, apprehended the second man and held him until the officers arrived. He told the officers that they should find a man out in the field who had been shot and that the man's gun was out in front of the building.

Officer Jack Williams testified that he went to the lumber company on the night in question and apprehended Alfred David Well who gave him a name. Kemp, after describing the man who escaped, left in an ambulance. Williams identified a sledge hammer, a pry bar, screw driver and pistol found at the scene. All of these were introduced into evidence.

Detective Ronald C. Nelson of the Dallas Police Department testified that on the afternoon of June 10, some three weeks after the burglary, he saw the appellant at the city hall. He related that the appellant had welts on his hand and some of them were festered and some of them had 'little black pellet or what appeared to be pellet looking marks on his hand.' When asked about other pellet wounds, he answered, 'They were like I say, some of them were festered, humped up on his hand and then over the chest area, there was one real infected or festered area and then out from it--several you can see in the picture, it looks like several dark pellet marks or blister appearing marks on his chest.' In Nelson's opinion, these appeared to be shotgun wounds.

Officer King testified that he arrested the appellant at about nine o'clock at night after he saw a car slowly circling a block two or three times. While he was attempting to stop the car, he saw the passenger attempting to hide something under the front seat. After stopping the car, he saw the barrel of a pistol on the floor of the car. The appellant, the passenger and the driver, Bobby Lee Williams, were then arrested. In addition to the gun, the officers found a small sledge hammer with the handle cut off and with black tape around it like the one found at the scene of the burglary. Both of the men gave fictitious names when they were arrested. On cross-examination, King testified that Williams was found not guilty on the charge of carrying the pistol.

Counsel for the appelant then called David Webb and Bobby Lee Williams. Webb claimed his Fifth Amendment right and refused to testify. Williams who was with the appellant at the time of the arrest testified that he (Williams) was driving the car and they were circling the block looking for a night club. He related that at the time of their arrest he had the pistol in his belt, but handed it to appellant who put it under the seat. On cross-examination, Williams admitted that he had been convicted in eight felony offenses from 1962 to 1966.

Did the statement, 'I am certainly not going to prosecute a man that I don't feel in my own heart is guilty,' by the assistant district attorney in his closing argument constitute reversible error? In view of this evidence, did this argument harm the defendant by causing the jury to find him guilty? Would the jury have found him guilty without the argument? Can it be said that the argument added anything toward the finding of guilt?

Assuming that it was improper, not every improper remark of a prosecutor calls for reversal; a judgment will not be reversed if the conduct was harmless or did not prejudice the defendant. Mirowitz v. State, Tex.Cr.App., 449 S.W.2d 475; 5 Tex.Jur.2d, Section 436, page 657.

In Hinton v. State, 65 Tex.Cr.R. 408, 144 S.W. 617, reversed on other grounds, this Court held the statement by the district attorney in his closing argument, 'If I did not believe a man was guilty in my heart, I would not prosecute him; and if I did not believe that defendant was guilty of assault to murder in this case, I would tender my resignation to the Governor of the state of Texas,' to be improper but that standing alone would not present a ground for reversal.

In Clark v. State, 117 Tex.Cr.R. 153, 35 S.W.2d 420, Judge Lattimore, for the Court, wrote, 'The state's attorney has a right to assume for the purpose of argument that the state('s) witnesses are telling the truth. . . .'

Some cases have been reversed because a prosecutor has expressed a personal opinion as to guilt, but these cases have been where the prosecutor has told or...