Jefferson v. State, 42653
| Decision Date | 11 March 1970 |
| Docket Number | No. 42653,42653 |
| Citation | 452 S.W.2d 462 |
| Parties | Raymond Leon JEFFERSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Tom F. Reese, Jr., Garland, for appellant.
Henry Wade, Dist. Atty., John B. Tolle, Camille Elliott, James P. Finstrom, Douglas D. Mulder, C. H. Erwin and Jim Barklow Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
The conviction is for rape; the punishment, fifty years.
The sufficiency of the evidence is not challenged.
The record reflects that about 12:30 in the morning, the complainant took a coworker home from their place of employment. She then started toward the nursery to pick up her child and was forced to the curb by a station wagon. In an effort to escape, she backed her car into a yard, but the motor stalled. She got out of the car and ran and was grabbed by two men and was taken to the station wagon which was occupied by some six people. Her life was threatened; her clothes were torn off, and she was driven to an alley where she was raped by the six men some sixteen or eighteen times. She was also forced to commit an act of sodomy. Her ring and watch were taken. After she pretended to be unconscious, she was rolled under a bush. She could not identify the men, but Thomas Samuells, one of the attackers, testified that appellant was one of the group and was the first to rape the complainant.
Appellant and his brother testified to an alibi. The jury chose not to believe them.
In the first ground of error, it is contended that the trial court erred in overruling a motion for mistrial during the argument of Mr. Mulder, an assistant district attorney.
The argument was as follows:
An objection was made that there was no evidence in the record to support the argument. The trial court informed the jury that he would let them judge what the testimony was. The prosecutor then said, 'Judge, I did not object to it when Mr. Reese (appellant's counsel) said it, because I was there and had--.' Another objection was made, and the prosecutor then withdrew the argument. The trial court instructed the jury not to consider the argument and overruled the motion for mistrial.
It appears from the record that Thomas Samuells had testified at the trial of Charles Morgan (a participant in the rapes) and that he had talked to appellant's counsel the night before the trial of the present case. Samuells was cross-examined extensively, and he testified that he was mixed up at the first trial.
Appellant's counsel had previously argued that Samuells had lied under oath before, and * * *' He also argued that the State had not placed appellant at the scene of the crime.
The State contends that the argument was invited by the argument of appellant's counsel.
Assuming that the argument was not invited, the trial court instructed the jury not to consider it, and the argument was not such as would constitute reversible error. In 5 Tex.Jur.2d, Sec. 436, p. 657, is found:
'The prosecutor's improper remarks or argument will result in a reversal, where it appears that they injured defendant. But not every improper remark of the prosecutor calls for reversal; a judgment will not be disturbed if the conduct was harmless, or did not prejudice defendant. * * *
In considering the entire record, the argument does not constitute reversible error.
In his second ground of error, it is contended that reversible error was committed at the penalty stage of the trial when Mr. Mulder argued,
An objection was sustained by the court, and the jury was instructed to disregard the argument. The trial court overruled the motion for mistrial. Appellant's counsel contends that this argument was for the purpose of injecting extraneous offenses for which he had not been accused.
Evidence of the acts which showed offenses of robbery and kidnapping, as well as rape, had been introduced before the jury and counsel had a right in the argument to comment upon the facts in evidence. See 1 Branch's Ann.P.C.2d, Sec. 390, p. 409, and Connaughton v. State, 164 Tex.Cr.R. 158, 297 S.W.2d 185, and Ellison v. State, Tex.Cr.App., 419 S.W.2d 849. The second ground of error is overruled.
In the third ground of...
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