Lasker v. State

• Decision Date: 13 August 1992
• Docket Number: No. 01-91-00851-CR,01-91-00851-CR
• Citation: 837 S.W.2d 727
• Parties: Andre Steffon LASKER, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 727

837 S.W.2d 727

Andre Steffon LASKER, Appellant, v. The STATE of Texas, Appellee.

No. 01-91-00851-CR.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 13, 1992.

Larry P. Urquhart, Brenham, for appellant.

Peter C. Speers III, Dist. Atty., Kathleen A. Hamilton, Asst. Dist. Atty., for appellee.

Before OLIVER-PARROTT, C.J., and JONES and PRICE ^*, JJ.

OPINION

PRICE, Justice (Assigned).

Appellant, Andre Steffon Lasker, was convicted by a jury of murder, and the jury assessed appellant's punishment at confinement for 99 years. In 11 points of error, appellant complains of improper jury argument, admission of prejudicial evidence, and ineffective assistance of trial counsel.

The record shows appellant and Ronald Juan Harris, the victim, attended a birthday party on November 21, 1990, in Brookshire, Texas. Sometime after midnight, Dan Williams and Harris had an argument near stairs leading to the second story apartment where the party was taking place. As Williams walked away from Harris, appellant came out of the apartment, walked down the stairs, and began arguing with Harris. Appellant and Harris shoved each other; appellant produced a pocket knife and stabbed Harris in the chest.

Harris fell to the ground. Several bystanders tried to administer life-saving procedures, but backed off when appellant returned and displayed a knife. Twice, appellant prevented the bystanders' efforts by standing over Harris and yelling, "Die, motherfucker, die."

In points of error one and two, appellant complains the prosecutor made improper references to his failure to testify during closing argument at the guilt-innocence phase of the trial.

As a general rule, a prosecutor may comment on the failure of a defendant to call witnesses. Montoya v. State, 744 S.W.2d 15, 36 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 921 (1988); Mosley v. State, 686 S.W.2d 180, 183 (Tex.Crim.App.1985). However, a prosecutor's comment on a defendant's failure to testify offends both the state and federal constitutions. Owen v. State, 656 S.W.2d 458, 459 (Tex.Crim.App.1983); Nickens, 604 S.W.2d 101, 105 (Tex.Crim.App.1980) (op. on reh'g); Pollard v. State, 552 S.W.2d 475, 477 (Tex.Crim.App.1977). The language of such a comment must be either manifestly intended or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. Griffin v. State, 554 S.W.2d 688, 691 (Tex.Crim.App.1977); Hicks v. State, 525 S.W.2d 177, 180 (Tex.Crim.App.1975). If, instead, the comment is an indirect allusion that might refer to the defendant's failure to testify, reversal is not required. Cannon v. State, 691 S.W.2d 664, 667 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986).

To be permissible, jury argument must fall within one of four general areas: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Albiar v. State, 739 S.W.2d 360, 362 (Tex.Crim.App.1987); Bell v. State, 724 S.W.2d 780, 802-803 (Tex.Crim.App.1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987); Morris v. State, 755 S.W.2d 505, 509 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd). Counsel may draw inferences from the record that are "reasonable, fair, and legitimate." Allridge v. State, 762 S.W.2d 146, 156 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989).

The complained of jury argument occurred after defense counsel spoke of the State's failure to subpoena, and call as witnesses, more of the persons present at the party:

Now, there is another problem in this case that I think that will--it alone would raise some reasonable doubt in your mind.

We have a pretty good police organization in this state. And why didn't they bring in more witnesses who were not connected family wise or to either one or the other, to the deceased, or to Danny. Why didn't they bring in some more? There's no question but that there are other witnesses out there.

It's the State's duty to bring you the whole case. There's bound to be some witnesses that could have cleared up some questions in your mind as to whether that knife was in the right hand or the left hand, as to whether this man even had a knife.

In response, the prosecutor began his summation with the following statement:

Thank you, judge. Let's talk about this right here for a second. Counsel would have you believe that that's a sacred pew, that only the State's witnesses come in and use it. That's not true. The State has the right to present evidence; the defendant has the right to go out and present a case.

(Emphasis added.) Defense counsel objected to this comment, and the trial court sustained the objection. The trial court stated, "The jury is instructed that the defendant's bringing or not bringing witnesses is not a matter to be considered by you," then denied counsel's request for a mistrial.

We find the prosecutor's remark, "the defendant has the right to go out and present a case," was a response to defense counsel's argument that the State should have called more witnesses to the offense. This remark was neither a direct nor an indirect comment on the failure of appellant to testify. The prosecutor did not refer to appellant; he merely alluded to the rights of defendants, in general. We hold this argument was not error.

Appellant also complains of the following argument by the prosecutor:

Now, there's something else that really concerns me about this entire situation in that we have, because of a dead man, the ability to tell you what his blood alcohol content was, and what he had in his system as far as any kind of cocaine. But we do not have the ability, ladies and gentlemen, to tell you what was in Andre Lasker's system ....

(Emphasis added.) Again, defense counsel objected, the trial court sustained the objection, and denied counsel's request for a mistrial. The trial court instructed, "The jury is not to consider any consideration of the defendant's condition. In compliance with the Court's charge, the defendant need not put on any testimony at all. The Court's charge speaks for itself in that regard."

We find the prosecutor's comments were reasonable deductions from evidence of the victim's blood-alcohol and cocaine use that Dr. Espinola, the medical examiner, brought to the jury's attention. In addition, the prosecutor's argument responded to arguments of defense counsel that, "There was cocaine there [at the party]; we know because we've got a scientific result," and "We know there was alcohol there, because we have the scientific test of it." As such, the prosecutor's comment was invited jury argument and was not error. Allridge, 762 S.W.2d at 156; see Long v. State, 823 S.W.2d 259, 269-70 (Tex.Crim.App.1991) (State's argument that there was no way of knowing what defendant's mental state was at time of extraneous offenses was invited argument). We overrule points of error one and two.

In point of error three, appellant contends the trial court erred in overruling his objection at the punishment stage of trial to the admission of two photographs of an extraneous offense for which he was adjudicated a delinquent and sentenced to a term in the Texas Youth Council. The State introduced the photographs in support of its showing appellant's propensity for using a knife to assault his victims. The photographs showed the owner of a convenience store in Brookshire, with blood on his head after he was allegedly assaulted with a knife by appellant. Appellant was 16 years old when the offense occurred.

The jury was removed from the courtroom, and defense counsel objected to the admission of the two photographs, pointing to the fact this misconduct committed by appellant occurred while he was a juvenile, and asserting the prejudicial and inflammatory impact of the photographs greatly outweighed any probative value. The trial court overruled the objections, and the two photographs were admitted into evidence.

To be admissible, evidence must be relevant to a contested fact or issue. Stone v. State, 574 S.W.2d 85, 89 (Tex.Crim.App.1978); TEX.R.CRIM.EVID. 401. To determine admissibility, the court should compare its probative value with its prejudicial aspects. Albrecht v. State, 486 S.W.2d 97, 99-100 (Tex.Crim.App.1972); TEX.R.CRIM.EVID. 403. The determination of admissibility is within the sound discretion of the trial court, Jackson v. State, 575 S.W.2d 567, 570 (Tex.Crim.App.1979), and will not be reversed on appeal unless a clear abuse of discretion is shown. Werner v. State, 711 S.W.2d 639, 643 (Tex.Crim.App.1985); Johnson v. State, 698 S.W.2d 154, 160 (Tex.Crim.App.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986); Nubine v. State, 721 S.W.2d 430, 432 (Tex.App.--Houston [1st Dist.] 1986, pet. ref'd).

Effective September 1, 1989, the Texas Code of Criminal Procedure was amended to provide:

Regardless of the plea ... evidence may, as permitted by the Rules of Evidence, be offered by the state ... as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character.

TEX.CODE CRIM.P.ANN. art. 37.07, § 3(a) (Vernon Supp.1992) (emphasis added). ¹ This Court has concluded that 37.07, section 3 permits the trial court to admit evidence beyond that of the defendant's criminal record, his general reputation, and his character. Rexford v. State, 818 S.W.2d 494, 496-97 (Tex.App.--Houston [1st Dist.] 1991, pet. ref'd). We will follow Rexford in order to maintain consistency among our panels on this point of law, while awaiting the decisions of the Court of Criminal Appeals in the cases for which it has granted discretionary review of this issue.

To be relevant, the matter offered must have a "tendency to make the existence of any fact that...