Johnson v. State

• Decision Date: 11 June 1980
• Docket Number: No. 56324,No. 3,56324,3
• Citation: 604 S.W.2d 128
• Parties: Billie Ruth JOHNSON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 128

604 S.W.2d 128

Billie Ruth JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 56324.

Court of Criminal Appeals of Texas, Panel No. 3.

June 11, 1980.

Rehearing Denied Sept. 10, 1980.

Allan K. Butcher, Fort Worth, for appellant.

Tim Curry, Dist. Atty., Marvin Collins, Jack Q. Neal, Jack J. Heinemann and Candyce W. Howell, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for murder. The punishment is imprisonment for fifteen years.

Appellant contends that the trial court erred by permitting the prosecutor to refer to and display before the jury a pistol which had been held inadmissible in evidence. Appellant also contends that evidence of the deceased's use of marihuana was erroneously excluded, and that the prosecutor engaged in improper jury argument.

The evidence establishes that appellant fatally shot Sammie Lee Chopp, Jr., during the early morning hours of March 28, 1976. The shooting took place in the duplex apartment appellant and the deceased shared. Howard Chopp, the brother of the deceased, witnessed the shooting. He testified that his brother and the appellant began arguing after she returned to the apartment at approximately 3:00 a. m. A struggle ensued, during which the two combatants fell to the floor. The witness heard three muffled shots, after which appellant stood up and fired three more shots into the prone body of the deceased.

Appellant admitted shooting the deceased, but contradicted Howard Chopp's version of the events. She testified that the deceased was "crazy" due to the use of marihuana, and had attacked her and was trying to kill her. She testified that she shot the deceased in self-defense.

Fort Worth police officers Dickie Gatlin and Jimmy Spinks testified that they discovered a revolver and six spent cartridges during a search of the apartment a few hours after the shooting. Spinks identified State's exhibit six as the revolver in question, and testified that at the time it was found it had been recently fired. At no time did appellant object to this testimony or to the display of the pistol before the jury. In fact, appellant carefully cross-examined both witnesses about the weapon.

The prosecutor offered State's exhibit six in evidence during his redirect examination of Spinks. Appellant objected to the introduction of the pistol on the ground that the search of the house had been unconstitutional, and the objection was sustained. Appellant then requested that the pistol be removed from the presence of the jury.

Appellant contends that the prosecutor was erroneously permitted to display or refer to the pistol on three occasions after it had been ruled inadmissible. The first instance occurred during the prosecutor's questioning of Howard Chopp. The prosecutor asked the witness:

"Q. Mr. Chopp, I will show you what has been marked as State's Exhibit Number Six and ask you if this is the pistol you saw that evening?

"A. Yes, that looks like it.

"Q. It looks like it?

"A. Yes.

"Q. Mr. Chopp, I will also show you what has been marked as State's Exhibits One through Five and ask you if you know the person whose picture these depict?

"A. Yes, that is my brother, Sammie Lee Chopp, Jr.

"Q. Could these pictures-

"MR. DUSHMAN: Excuse me

(Discussion at the bench)

"THE COURT: All right. The jury go to the jury room, please."

Outside the presence of the jury, appellant moved for a mistrial because of the display of the pistol but the motion was overruled.

The second reference to the pistol occurred during the prosecutor's cross-examination of appellant, when he asked her:

"Q. There is no denial that you did shoot him with a pistol, is that right?

"A. Yes, sir.

"Q. There is no denial that you did empty the pistol?

"A. Yes.

"Q. Now do you have that pistol this date?

"A. No, sir.

"Q. All right. Have you seen it recently?

"MR. DUSHMAN: Excuse me, Your Honor. That is trying to get in the record what they can't do.

"THE COURT: Overruled. I will permit him to answer the question.

"BY MR. NEAL:

"Q. Have you seen the pistol recently?

"A. I saw it yesterday.

"Q. You saw it yesterday?

"A. Yes, sir."

The third reference to the pistol occurred during rebuttal testimony by Officer Spinks. The prosecutor questioned Spinks about his search of the murder scene as follows:

"Q. Well, knowing that there had been a shooting your primary concern was locating the weapon?

"A. Yes, sir.

"Q. And at that time you weren't aware that there was anything such as marijuana involved in this case, is that true?

"A. Yes, sir.

"Q. That is not true?

"A. I was not aware it was involved, sir.

"Q. So in your search when you searched and you found a pistol that you have talked about when you all came to the window-at that point you were satisfied with at least that portion of your investigation?

"A. Yes, sir."

Appellant voiced no objection to this testimony.

Appellant contends that the display of and references to the pistol after it was held inadmissible was a deliberate effort by the prosecutor to prejudice appellant and deny her a fair trial. However, appellant permitted the police officers to fully testify to the discovery of the pistol, and to display and identify the pistol before the jury, without objection. Indeed, appellant also questioned the officers about the pistol. Thus, appellant's objection to the admission of the pistol in evidence came too late. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976). The display of the pistol after it had been held inadmissible reflects no credit on the prosecuting attorney, but it could hardly have prejudiced appellant in light of the earlier testimony to which no objection was made. See Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977).

Appellant testified that the deceased's attack on her was precipitated by his use of marihuana. In this connection appellant contends that the trial court erred in refusing her to permit her uncle, George Garrett, Jr., to testify before the jury that the deceased was an habitual smoker of marihuana, and that under the influence of the drug the deceased's eyes would become red and he would become violent and aggressive.

Five witnesses, appellant, her father, her uncle, the deceased's brother, and Shelly Morgan, a friend of appellant, testified that the deceased had physically attacked appellant on various occasions. Both appellant and Morgan testified that the deceased was a frequent user of marihuana and that he would become violent when under the influence of the drug, and described several marihuana-related assaults by the deceased against appellant. Appellant testified that on the night of the shooting the deceased's eyes looked like "bottles of fire" and that he seemed "crazed on marihuana." Given this substantial body of testimony concerning the deceased's use of marihuana and its violent effect on him, the trial court's refusal to admit Garrett's proffered testimony was not reversible error. Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974); Coleman v. State, 442 S.W.2d 338 (Tex.Cr.App.1969).

In several grounds of error, appellant contends that the prosecutor engaged in improper jury argument during the guilt-innocence stage of the trial. In the first of these grounds of error, appellant contends that the prosecutor misstated the law of self-defense when he argued:

"Of course, in this murder case, as in a great number of murder cases, the law is that a person has the right of self defense. In this murder case, as in other murder cases, that self defense issue is raised because if a defense is not raised they are guilty as charged. So the accused had to raise some sort of defense in this case, otherwise all the jury had to do is walk out and say yes, she's guilty.

"MR. DUSHMAN: Excuse me, Your Honor. I'm going to object to counsel arguing that, that is a misstatement of the law. It's not the duty of the Defendant to raise an affirmative issue in this case or any case. It's the burden of the State to go forward with the proof as the law prescribes, proof beyond a reasonable doubt as to whether or not a person is guilty.

"THE COURT: The Court has charged the jury on the law with reference to that facet."

Appellant failed to secure a ruling on her objection, nor did she request an instruction to disregard. Therefore, nothing is presented for review. Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977); Johnson v. State, 527 S.W.2d 525 (Tex.Cr.App.1975); Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App.1974). The trial court correctly charged the jury on the law of self-defense. The prosecutor's remark, while erroneous, was not so prejudicial or manifestly improper as to require a reversal of the judgment.

Appellant complains that the prosecutor's reference to her place of employment as a "beer joint" was designed to prejudice the jury against her. She draws attention to the two following remarks:

"You remember that they were referring to it as a cafe when all it boiled down to as selling pig knuckles and beer. Let's face it. Where she worked was in this beer joint."

"By the way, I don't know why they referred to it all the time as the cafe. We did not introduce the word cafe. It was only through eliciting testimony that the witness said that these cafes they kept talking about were in truth beer joints."

The evidence shows that appellant worked at Johnson's Cafe, which was owned and operated by her parents. During her cross-examination, she was asked:

"Q. Do they serve food down there?

"A. Only pig's feet.

"Q. Only pig's feet?

"A. Yes, sir.

"Q. Actually, it's not a restaurant, it's a beer joint, isn't it?

"A. Yes, sir."

Thus, these and the other references to a beer joint in the prosecutor's argument were supported by the evidence. Moreover, appellant never objected to the prosecutor's use of the term. Nothing is presented for review. Cain v....