Hurd v. State, 48872

• Decision Date: 18 September 1974
• Docket Number: No. 48872,48872
• Citation: 513 S.W.2d 936
• Parties: James Robert HURD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 936

513 S.W.2d 936

James Robert HURD, Appellant, v. The STATE of Texas, Appellee.

No. 48872.

Court of Criminal Appeals of Texas.

Sept. 18, 1974.

Rehearing Denied Oct. 16, 1974.

Dan L. Barber, Colorado City, for appellant.

Lealand W. Greene, Dist. Atty., Snyder, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

The appellant was convicted, in a trial before a jury, of murder with malice. The punishment was assessed by the jury at life imprisonment.

Appellant does not challenge the sufficiency of the evidence to sustain the conviction; therefore, only a brief recitation of the facts will be necessary.

On March 10, 1973, the body of a sixteen year old girl, Elizabeth Goodlett, was found in a farmhouse approximately two miles south of Snyder. The physician performing the autopsy testified the cause of death was approximately fifteen stab wounds to the head of the victim.

The farmhouse where the body was found belonged to David Dillaha. The victim was Dillaha's girlfriend. The appellant was acquainted with Dillaha and had been keeping a caged bobcat at his farm. On the day in question, the appellant and several of his friends went to the Dillaha farmhouse to feed the bobcat. Elizabeth Goodlett was alone at the farmhouse. Appellant and his friends returned to their apartments in town. At approximately 7:15 P.M. appellant stated he was going to get some cigarettes. He did not return until after 9:00 P.M. When he returned he had a cut on his finger. The appellant told his neighbors and his wife that he had been cut in a fight at a local grocery store. The next day he told one of his companions he cut his finger while at a dance.

In the course of the police investigation of the murder the appellant and his friends were asked to come to the police station to be fingerprinted. The deputy sheriff taking the fingerprints asked appellant how he cut his finger. When the appellant told him he had been cut in a fight at the grocery store, appellant's companion, Dubb Tubb, notified the officer that he was given a conflicting story by appellant.

Upon being confronted with his conflicting stories, appellant made several oral statements and two written statements incriminating himself. The appellant admitted in his statement that he had returned to the Dillaha farmhouse on the day in question when he told his friends he was going for cigarettes. At the farmhouse he found Elizabeth Goodlett alone. They had sat and talked for several minutes when he tried to kiss her; she resisted. At this point appellant stated he went 'crazy' and blacked out. The next thing he remembers is standing over the bloody body of the girl. He became frightened and fled the scene. He admitted he had 'hurt' the girl and that he 'knew he had killed her.' However, he did not remember the actual stabbing of the victim due to the temporary blackout.

A fingerprint expert testified that a fingerprint on the bloody knife found in the Dillaha farmhouse matched the appellant's fingerprint.

The defense called a psychiatrist, Dr. Raines, who testified that in his opinion appellant had suffered a 'temporary psychotic break' and was insane at the time of the offense. The appellant testified in his own behalf to substantially the same as stated in his written confession.

On rebuttal, the State produced a psychiatrist, Dr. Grigson, who stated as his opinion that appellant was not insane at the time of the trial or at the time of the offense. Rather, he said such a blackout could not have occurred.

In his grounds of error numbers one, twelve, thirteen and fourteen, the appellant complains of jury argument made by the State's attorney. In the first ground of error the complained of argument consists of the following:

'Let's see the things that bother Dan Barber (defense counsel). Let's see the things that bother him, the manipulator. I can bet you the first thing that bothers him is that this man is guilty beyond a reasonable doubt . . ..'

The State contends the above argument was invited by prior argument of counsel for appellant as follows:

'Now, then, you will remember David Dillaha's testimony and I'm not going to attempt to go into all of his testimony. You will remember it.

'But there are some things that bother me.'

'Well, I'm bothered. I'm bothered about the fact that he took this girl out there and he left her and he didn't come back . . ..'

The defense also argued to the jury that the State was the 'manipulator' in this trial and not the appellant in the following argument:

'The prosecution is entitled to infer anything from the evidence that might reasonably follow from the evidence. He has made inference that her jaw was broken by a sociopath, and that when he saw what he had done that he very cleverly manipulated everyone around him in his surroundings, in his environment to escape punishment. Is that consistent with the fantastic evidence of palmprints on everything, blood prints all over? The Sheriff and everybody that testified said that they didn't dust anything else. 'We didn't dust anywhere else for fingerprints except there in the sink.' You can see it.

'Now, this is where you exercise your function as judges. Is this the action of a person who has blacked out or is this the action of the person who is a con man, a clever manipulator of his environment to meet his own end? Don't you see who is being manipulated here? Don't you see that? I know you do, I think.'

Thus, it would appear that the complained of argument was invited and was in reply to appellant's counsel. Chapman v. State, Tex.Cr.App., 503 S.W.2d 237; Hartman v. State, Tex.Cr.App., 496 S.W.2d 582; Hefley v. State, Tex.Cr.App., 489 S.W.2d 115; Sennette v. State, Tex.Cr.App., 481 S.W.2d 827. However, even if we assume argument was not invited by appellant, we hold it does not constitute reversible error under the totality of the evidence. Bacon v. State, Tex.Cr.App., 500 S.W.2d 512; Joshlin v. State, Tex.Cr.App., 468 S.W.2d 826.

In the twelfth ground of error, the appellant contends the State's attorney made reference to other crimes in the community during his final argument. The appellant's discussion and argument pursuant to ground of error number twelve is limited to the following:

'On pages 1208, 1209, 1219, 1221, 1222, 1247, 1248, 1117, 1216, 1119, 1187, and 1197 of S/F are found examples of references to other crimes in the community and other generally prejudicial statements directed toward the defendant.'

The use of page numbers to set out the basis for the ground of error is not sufficient to call the Court's attention to the matter about which the appellant complains and does not comply with Art. 40.09, § 9, Vernon's Ann.C.C.P. Thomas v. State, Tex.Cr.App., 451 S.W.2d 907; Gonzales v. State, Tex.Cr.App., 449 S.W.2d 49. Furthermore, the instances where appellant complains the argument was improper are not set out separately and are in violation of Art. 40.09, § 9, V.A.C.C.P., which requires the appellant to 'set forth separately each ground of error of which the defendant desires to complain on appeal.' For this reason, nothing is presented to this Court for review. Elizalde v. State, Tex.Cr.App., 507 S.W.2d 749; Fausett v. State, Tex.Cr.App., 468 S.W.2d 92.

Appellant's twelfth ground of error is overruled.

In his thirteenth ground of error, the appellant contends the trial court erred in overruling his objection to the following argument of the State's attorney:

'Don't be misled by technique. Is it technique that we get evidence? Is it technique that we prepare for our cases? Is it technique that we try to put murderers in the penitentiary? Stabbers? People who break other peoples' jaws. Is that technique? If that's technique, and this man walks of (sic) the Courtroom, I'll follow him.

'Don't be fooled by--

'MR. BARBER: Your Honor. We object to the last statement of the District Attorney as being an appeal to prejudice and improper argument. And we ask the Court to instruct the jury to disregard it. Without waiving that, we ask the Court to move for a mistrial.

'MR. GREENE: Your Honor, that's a proper request for law enforcement.

'THE COURT: All right. I will overrule the objection.'

It is error for any attorney to argue his personal opinion of the case. However, the isolated sentence objected to does not reflect the context in which argument was made. It was a plea for a finding of guilt in a context for law enforcement. See Chatman v. State, Tex.Cr.App., 509 S.W.2d 868; Booth v. State, Tex.Cr.App., 499 S.W.2d 129. When the whole argument is considered, no reversible error is shown.

Appellant's thirteenth ground of error is overruled.

In his fourteenth ground of error, appellant complains of argument by the State's attorney questioning the belief of appellant's counsel on the merits of the case. However, the record reflects no objection to the argument was interposed by appellant. Absent such an objection, there is nothing before this Court to review. Newman v. State, Tex.Cr.App., 501 S.W.2d 94; Wheeler v. State, Tex.Cr.App., 496 S.W.2d 85.

Appellant's fourteenth ground of error is overruled.

In grounds of error two, three and four, the appellant contends the trial court erred in failing to give the jury charges on 'intrinsic insanity' placing the burden upon the State to prove appellant was sane beyond a reasonable doubt. The two requested charges would instruct the jury to find the appellant not guilty if it had a reasonable doubt that at the time of the offense, appellant was insane due to a trauma caused by the deceased kicking him or stabbing him. ¹

The appellant contends the requested charges should have been submitted under the authority of Haley v. State, 111 Tex.Cr.R. 144, 12 S.W.2d 225, and Dent v. State, 46 Tex.Cr.R. 166, 79 S.W. 525. In Haley v. State, supra, the Court quoted from Dent v. State, supra, as follows:

'The court nowhere in his charge applied the law of reasonable doubt to this...