Hill v. State
| Decision Date | 21 October 1982 |
| Docket Number | No. 13-81-361-CR,13-81-361-CR |
| Citation | 647 S.W.2d 306 |
| Parties | Horace HILL, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Arthur Lapham, Hartman, Lapham, Seerden & Walker, Victoria, for appellant.
Knute Dietze, Criminal Dist. Atty., Victoria, for appellee.
Before NYE, C.J., and YOUNG and GONZALEZ, JJ.
This is an appeal from a conviction of murder in which the decedent was stabbed to death. Punishment was assessed at life. Appellant brings six grounds of error on appeal.
Appellant contends in his first ground of error that the trial court erred in allowing the prosecutor to inject into the trial and to argue in final arguments unsworn personal opinion, unsupported by the evidence admitted during the trial, concerning an alleged conversation between appellant and a detective. Appellant argues that there was no question in this case that appellant stabbed the deceased or that these stab wounds caused her death. Rather, the disputed issue was whether appellant stabbed the deceased in self-defense as appellant contends, or in an attempted murder-suicide as the prosecutor contends. Appellant argues that the prosecutor's theory of murder-suicide arises from a conversation between appellant and a police officer which took place when the appellant was released from intensive care. While there is reference to this conversation in the record, appellant asserts that there is no evidence in the record on the oral statements between the detective and appellant that would indicate that the appellant stabbed himself in a murder-suicide attempt. Although appellant's contention may be correct, we are of the opinion, after carefully reviewing the record, that the references to a possible murder-suicide could be based on other evidence introduced during the trial, including a letter purportedly from appellant explaining why he killed the decedent. This letter was admitted into evidence, and its admissibility is not challenged on appeal. We hold that there was competent evidence in the record which would support the prosecutor's murder-suicide argument.
In conjunction with this ground of error, appellant contends in ground of error four that the trial court erred in allowing the prosecutor to read during the trial and during final argument the letter written by the appellant prior to decedent's death. Since this letter was admitted into evidence, it was proper for the prosecutor to read it at the time it was introduced and during final argument. It is well established that counsel may, during final argument, draw from the facts in evidence any inferences that are reasonable, fair and legitimate. Furthermore, counsel has wide latitude in this respect so long as the argument is supported by the evidence and was offered in good faith. Vaughn v. State, 607 S.W.2d 914 (Tex.Cr.App.1980). The prosecutor's argument on murder-suicide was not merely unsworn personal opinion, but was instead a legitimate inference that could be drawn from the facts. Appellant's first and fourth grounds of error are overruled.
In ground of error two, appellant contends that the trial court erred in denying his motion for mistrial based on the discovery that the prosecutor's expert witness gave opinion testimony concerning the negative results of a blood-alcohol test without proper predicate and based on the prosecutor's failure to provide appellant with copies of the results of the blood-alcohol test in compliance with the court's pretrial order.
During the trial of the case, the prosecutor called an expert witness to testify as to the blood-alcohol content of the deceased. The expert had not made nor supervised the actual test. However, after the admission of this testimony, the court instructed the jury to disregard its results. The general rule is that an instruction to disregard will generally cure error except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Williams v. State, 604 S.W.2d 146 (Tex.Cr.App.1980).
In the instant case, the blood-alcohol analysis test was not a crucial issue. Appellant had testified that the deceased had been drinking, and there was no argument that the deceased had not been drinking; nor was there any other attempt to produce any evidence on the sobriety, vel non, of the deceased. The court's instruction to disregard the testimony cured the error. Appellant also argues that it was error for the prosecutor not to furnish him with a copy of the results of this test. Since the testimony regarding the blood analysis test was withdrawn, we fail to see how appellant could have suffered any harm by not having a copy of the blood test results. Appellant's second ground of error is overruled.
In his third ground of error, appellant contends that the trial court erred in overruling his...
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