Scott v. State
| Decision Date | 16 November 1960 |
| Docket Number | No. 32404,32404 |
| Court | Texas Court of Criminal Appeals |
| Parties | Felo SCOTT, Appellant, v. STATE of Texas, Appellee. |
Jack W. Knight, Houston, for appellant.
Dan Walton, Dist. Atty., Carl E. F. Dally, Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder; the punishment, 20 years.
Appellant and one Jackson were told to leave a drinking establishment because they were arguing; soon thereafter a shot was fired and LaBome, the deceased, was found lying in a pool of blood.
Officer Hruzek, who investigated the killing, testified that he went to appellant's home and asked for the weapon he had used in the shooting; appellant got it from a drawer and said, 'I meant to shoot Jackson but I shot Poncho instead.' It was shown that the weapon which appellant gave the officer was the weapon which fired the fatal bullet.
Appellant did not testify in his own behalf, but called his brother, who testified that Jackson was approaching appellant with a knife in his hand at the time appellant fired the shot which somehow hit Poncho LaBome instead of Jackson.
Officer Hruzek was called in rebuttal and testified that no such person as appellant's brother was in the vicinity on the occasion in question.
It was shown that a written confession was made by appellant later that day, but the State did not elect to offer it in evidence.
The sufficiency of the evidence to support the conviction is not challenged, and the sole question presented by the brief relates to conduct and statements made by the prosecutor during the argument of appellant's counsel. We quote the entire transaction which appellant contends reflects error:
'Appellant's Counsel (Mr. Knight): * * * we developed[170 TEXCRIM 239] by several State's witnesses, the officers in question, that this Defendant signed a so-called confession, which confession remains the property of the State of Texas, District Attorney's Department, and they haven't chosen to introduce that in evidence. * * *
'Mr. Ward (Prosecutor): If Mr. Knight wants it introduced, we will allow him to introduce it at this time as a Defense exhibit, Your Honor.
'Mr. Knight: May it please the Court, we move for a mistrial on the basis of Counsel's comment, challenging the Defendant to introduce the statement when it is the State's confession taken from him in which they have not introduced.
'The Court: Well, the Jury will disregard the State's comment, and the answer and the reply.
'Mr. Knight: Exception to the Court's ruling, Your Honor.
'The Court: Yes sir.
'Mr. Knight continues: At any rate, now they are hollering for us to introduce what they took with their skilled Police Department, intending some day to present to a Jury down here but they didn't do it, and you will go back in this Jury room trying to decide this man's fate without the benefit of the confession that he gave within minutes, or hours at the most, after this happened, and down there where they had every favorable means to take his confession. Now, you can make up your mind what should have been done with that confession, and I say that they are suppressing evidence when they fail to put it before you and * * *
'Mr. Ward: Your Honor, if the Defendant is going to continue I am going to object to it, and I feel that we do have a right to allow him to offer it under the law.
'Mr. Knight: We once again object to the remarks of the District Attorney, if the Court please, and move for a mistrial for the reason that we are in a proper line of argument and the District Attorney now is challenging the Defendant to introduce the confession taken by the State without even hving examined it, and for that reason we move the Court for a mistrial because of the prejudice and harm of the District Attorney's remarks.
It is apparent from the foregoing chat the offer made by the prosecutor was in reply to statements made by appellant's counsel and therefore not reversible error.
Reliance is had upon Howard v. State, 147 Tex.Cr.R. 88, 178 S.W.2d 691, but we do not find the same here controlling because in that case the offer to call the witness was tantamount to the prosecutor saying that such witness would affirm the fact that the accused was out dancing with a Mexican woman within five days after the death of his wife, while in the case at bar the offer of the prosecutor made no allusion to what was contained in the confession but merely tendered the same to opposing counsel after counsel had commented on the State's failure to introduce the same.
In Nix v. State, 136 Tex.Cr.R. 240, 124 argument posed the question as to why the State had not brought a certain witness in to testify. In reply, the prosecutor said that they would bring in the witness and tender him to the accused. This Court held such reply to have been invited by argument of defense counsel.
See also 1 Branch's Ann.P.C., 2nd Ed., Sec. 383, p. 403; Gaskin v. State, 119 Tex.Cr.R. 223, 120 Tex.Cr.R. 152, 46 S.W.2d 975; Johnson v. State, 141 Tex.Cr.R. 175, 147 S.W.2d 811; Ross v. State, 153 Tex.Cr.R. 312, 220 S.W.2d 137; Andrews v. State, 163 Tex.Cr.R. 81, 289 S.W.2d 262; Musser v. State, Tex.Cr.App., 321 S.W.2d 882, and cases there cited.
Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment of the trial court is affirmed.
I would affirm the conviction because the complained of conduct of the prosecuting attorney is not presented to this court for review in any manner authorized by law.
No bill of exception appears in the record.
Appellant relies solely upon Art. 759a, Sec. 2(c), Vernon's Ann.C.C.P., as [170 TEXCRIM 241] amended in 1955, which provides: 'In like manner as hereinbefore provided in this Section, the defendant may reserve in the Statement of Facts, or by informal Bill of...
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Boyd v. State
...was made in reply to the orations of defense counsel. There was no error; there was certainly no reversible error. Scott v. State, 340 S.W.2d 52 (Tex.Crim.App.1960). Because of the overwhelming evidence in this case, we decide that if the State's argument was improper, then it was harmless ......
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Shelton v. State
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