Overstreet v. State

• Citation: 470 S.W.2d 653
• Decision Date: 16 September 1971
• Docket Number: No. 44122,44122
• Parties: Brenda Lou OVERSTREET, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 653

470 S.W.2d 653

Brenda Lou OVERSTREET, Appellant, v. The STATE of Texas, Appellee.

No. 44122.

Court of Criminal Appeals of Texas.

Sept. 16, 1971.

Michael L. Morrow, Dallas (Court appointed on appeal), for appellant.

Henry Wade, Dist. Atty., John B. Tolle and Robert E. Whaley, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for robbery by assault where the punishment was assessed at 15 years.

The sufficiency of the evidence to sustain the conviction is not challenged. Suffice it to say that the evidence reflects the appellant and Billy Wayne McCarter entered a grocery store in Seagoville, Texas, on December 22, 1968, at approximately 7:30 p.m. and at gunpoint robbed James Henderson and his wife of approximately $139.99.

All of appellant's grounds of error relate to jury argument.

First, she complains of the prosecutor's argument at the guilt stage of the trial that 'You as citizens of Dallas County deserve to see our laws enforced. I will ask you now that if you are sick and tired of this kind of activity going on in your county--'

Shortly thereafter he argued: 'I will ask you, ladies and gentlemen, to go back in that jury room and write a verdict of which you may be proud, the only proper verdict in this case, and where you can walk from the Courtroom and know you have done justice in Dallas County. I ask you sincerely to write a verdict of guilty as the evidence shows the woman to be. Thank you very much. Thank you, Judge.'

To the first complained of argument the court sustained appellant's most general objection and instructed the jury to disregard, though denying the motion for mistrial. To the second argument there was no objection at all.

Relying upon Pennington v. State, 171 Tex.Cr.R. 130, 345 S.W.2d 527, the appellant contends such argument was improper as an attempt to induce the jury to convict because the people of the community desired or expected a conviction, and thus inject a new and harmful fact into the evidence. See also Cox v. State, 157 Tex.Cr.R. 134, 247 S.W.2d 262, 263.

We cannot agree with such interpretation. The argument was a plea for law enforcement rather than an urging of the jury to convict because of the community's desires or expectations. Further, the objection was sustained and the jury instructed to disregard one portion of the argument and no objection was made to the other. Clearly no error is presented.

The remaining grounds of error relate to the prosecutor's jury argument at the penalty stage of the bifurcated trial.

Although she did not testify at the guilt stage of the proceedings, the appellant testified at the hearing on punishment in support of her motion for probation. Indicating she did not agree with the jury's finding of guilt, she asked for their leniency. She was not cross-examined. Appellant's counsel in his argument urged the jury to grant probation, discussing the possible probationary conditions including restitution.

First, the appellant complains that the prosecutor in his closing argument argued law and evidence not given to the jury and commented on her failure to testify when he argued there were three separate reasons for punishment and stated:

'First of all to make the Defendant pay for what she has done. Would paying back $137.99 wash the slate clean? Certainly not, you know that the law says also that a prime reason of punishment is to deter others from committing like offenses. I wonder how much a probation would deter other people from going into grocery stores, shoving guns in the faces of defenseless women and taking the money out of the till. Do you think that probation is a deterrent? I think you know better than that. Last of all, punishment is to rehabilitate the Defendant if you can rehabilitate them. When you think about rehabilitation, you, you think about the first great step to rehabilitation is stepping forward and confessing one's guilt and being ready to take the punishment that is doled out.'

Appellant then objected that such argument was a direct reference to her 'failure to testify in the first proceeding in that he is calling for a confession. We ask at this point for a mistrial.'

The objection was overruled and motion for mistrial was denied. No relief in form of a jury instruction was requested.

It is true that the failure of an accused in a criminal case to testify in his own behalf may not be the subject of comment in argument. See Article 38.08, Vernon's Ann.C.C.P. 'The prohibition extends to references to failure to testify at a former trial, an examining trial, a hearing on an application for a writ of habeas corpus, or any other stage in the...