McIntire v. State

• Decision Date: 27 October 1983
• Docket Number: No. 13-82-231-CR,13-82-231-CR
• Citation: 662 S.W.2d 65
• Parties: Kenneth Leroy McINTIRE, Jr., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 65

662 S.W.2d 65

Kenneth Leroy McINTIRE, Jr., Appellant, v. STATE of Texas, Appellee.

No. 13-82-231-CR.

Court of Appeals of Texas,

Corpus Christi.

Oct. 27, 1983.

Discretionary Reviews Granted March 28, 1984.

Jeffrey W. Jones, Harlingen, on appeal only, for appellant.

Malcolm S. Nettles, Reynaldo Cantu, Jr., Brownsville, for appellee.

Before NYE, C.J., and YOUNG and KENNEDY, JJ.

OPINION

NYE, Chief Justice.

In a jury trial, appellant was convicted of the offenses of aggravated sexual abuse and indecency with a child. Punishment, also determined by the jury, was assessed at twenty-five years imprisonment for the aggravated sexual abuse and five years imprisonment for the indecency with a child. Both appellant, acting pro se, and appellant's counsel have filed briefs in which a total of fifty grounds of error are asserted. The sufficiency of the evidence to support the conviction is not challenged. We affirm the decision of the trial court, but reform the judgment to reflect a conviction and sentence only for aggravated sexual abuse.

The State adduced evidence showing that Mr. Efrain Estrada, Mr. Demetrio Medrano, Ms. Irma Garcia, Mr. Francisco Rosas, Ms. Maria Hernandez, Ms. Ofelia Dorado, and Ms. Maria Gonzalez either heard or saw appellant talking with the 11-year-old complaining witness on the day of the offense. Ms. Gonzalez testified that appellant lived "[R]ight along side me, about six feet away" and that her windows faced his windows. Ms. Gonzalez, Mr. Estrada, and Mr. Medrano testified that they observed appellant through an open window perform anal intercourse on the complaining witness. The complaining witness also testified that appellant performed anal intercourse upon him.

In his first ground of error, appellant contends that the trial court erred by overruling the Motion for New Trial on the ground that the right to file the Motion was waived because appellant had previously filed a pro se notice of appeal. We note, however, that the trial court also wrote that the Motion presented "nothing for hearing." Appellant was not harmed by the trial court's action; that is, none of his grounds of error were waived and he is not prejudiced on this appeal. Appellant's first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred by finding that his Motion for New Trial "presented nothing for hearing" because the Motion includes a juror's Affidavit which appellant contends shows that (a) the jury agreed to abide by a quotient verdict (also challenged by appellant's twelfth pro se ground of error); (b) appellant was injured by a prejudicial remark made by a non-juror to a juror out of the presence of the court; and, (c) the jury discussed the parole law in arriving at its verdict. The juror's affidavit stated:

"I remember one of the jurors suggested we ought to figure out what each one of us thought [appellant] should get and then we should just take the average .... Anyway, we made out little slips of paper with the number of years we thought he should get on it .... Then we averaged them all up and the average was twenty-seven years. The two jurors who were holding out for less than ten years agreed to change to twenty-five years and that's how we all finally agreed to twenty-five years."

A jury verdict arrived at by such means will not be overturned unless it is shown that the jurors agreed in advance to be bound by the result of the averaging process. Martinez v. State, 496 S.W.2d 612 (Tex.Cr.App.1973); Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971). There is no showing that the jurors agreed to be bound by the average result. No error is shown.

Appellant next contends that the juror's affidavit shows he was harmed because a particular juror stated that, after an adjournment during the guilt or innocence phase of the trial, a witness asked him, "What do you do with a guy like that?" The juror ignored the remark and said nothing.

When a juror converses with an unauthorized person about a case, harm is generally presumed. However, the defendant must establish that the discussion involved matters concerning the specific case at trial. Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982). In addition, the defendant must show that the conversation operated to prejudice his rights. Starvaggi v. State, 593 S.W.2d 323 (Tex.Cr.App.1979); Wilkes v. State, 566 S.W.2d 299 (Tex.Cr.App.1978); Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974).

The "conversation" complained of was an unsolicited question from one of appellant's own character witnesses. The question did not in itself concern specifics of appellant's proceedings. The off-hand remark by appellant's own witness, unresponded to, did not constitute reversible error. See Romo v. State, supra.

Appellant next contends that the jury improperly discussed the parole law because the juror stated in the Affidavit that:

"Of course we all discussed parole several times before we finally agreed on the twenty-five years. I remember someone saying during one of the discussions about parole, 'How do you rehabilitate a man like that?' "

Appellant must show that the jury's discussion of the parole law denied him a fair and impartial trial. This requirement may still be met in Texas by showing that even a single juror voted for increased punishment because of the discussion of the parole laws. Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App.1982). There was no showing that appellant received increased punishment, or was in any way denied a fair trial, because of the parole discussion. Appellant's arguments are overruled. ¹

In his third ground of error, appellant contends that the trial court erred by refusing to grant appellant a hearing on his Motion for New Trial. Appellant argues that he has the absolute right to have the Motion heard. This is not so. For instance, a motion for new trial may be overruled by operation of law. Article 40.05 of the Code of Criminal Procedure (Vernon Supp.1981). The questions presented by appellant's motion were determinable from the record itself and from the juror's affidavit. Under such circumstances, we find no error in the overruling of the Motion without a hearing. See Darrington v. State, 623 S.W.2d 414 (Tex.Cr.App.1981); Hilton v. State, 443 S.W.2d 843 (Tex.Cr.App.1969). We hold that the trial court did not abuse its discretion. Appleman v. State, 531 S.W.2d 806 (Tex.Cr.App.1975); Beal v. State, 520 S.W.2d 907 (Tex.Cr.App.1975). Appellant's third ground of error is overruled.

In his fourth, fifth, and sixth grounds of error, appellant contends that since his warrantless arrest was illegal, the trial court erred by allowing testimony from the arresting officers and photographs of appellant's residence to be adduced into evidence. In his pro se brief, appellant makes similar contentions in grounds of error four through six.

We note that appellant failed to object either to the illegality of the arrest or to the admission of the challenged evidence. Therefore, there is nothing preserved for appeal. Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980). Even if an objection had been made, it would not have been reversible error. Deputy David Martinez testified that he entered appellant's apartment without knocking, saw the complaining witness and determined that he was all right. He then went to the doorway of appellant's bedroom, announced himself as a police officer, and later placed appellant under arrest. The photographs of which appellant complains depicted the exterior of his residence, an automobile allegedly used by him, and various scenes inside his house, including his bed, bedroom, and "shorts."

An unlawful arrest is not an evidentiary element of a conviction, and will not in itself require a reversal. Lyles v. State, 582 S.W.2d 138 (Tex.Cr.App.1979); Johnson v. State, 548 S.W.2d 700 (Tex.Cr.App.1977). In addition, even the improper admission of such evidence will not cause a reversal unless there is a reasonable possibility that the evidence might have contributed to the conviction. Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981); Gutierrez v. State, 628 S.W.2d 57 (Tex.Cr.App.1980). Under the facts of this case, including eye-witness accounts of the crime and appellant's failure to challenge the sufficiency of the evidence, we find that error, if any, was harmless. These grounds of error are overruled.

In his seventh through tenth grounds of error, appellant contends that the prosecutor engaged in improper jury argument at both the punishment and guilt-or-innocence phases of the trial by referring to appellant as a "homosexual" and as a "child abuser." Neither jury argument is before us as part of the appellate record. Appellant seeks to preserve error by enclosing Bills of Exception, approved by the trial court, which outlines the argument now complained of. Each Bill of Exception notes that no objection was made to the challenged argument; thus, appellant's grounds are once more waived. Even if the complaint had been preserved, again, we would not find reversible error. The argument, in light of the record as a whole, was not extreme or manifestly improper. It was not violative of a mandatory statute, and did not inject new facts, harmful to the accused, into the trial proceedings. Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980). In addition, the prosecutor's remarks were correct conclusions drawn from the evidence. See Murray v. State, 505 S.W.2d 589 (Tex.Cr.App.1974); Hart v. State, 161 S.W.2d 791 (Tex.Cr.App.1942). No error is shown.

In his tenth pro se ground of error, appellant complains of other improper argument; however, there is again no showing of an objection to the argument, and it is unclear from appellant's brief exactly what the allegedly improper argument was, where in the record it could be found, or even whether the argument was improper. The ground of error is overruled.

In his eleventh ground of error, appellant contends that ...