Thomas v. State

• Decision Date: 17 January 1979
• Docket Number: Nos. 55472-55474,No. 3,s. 55472-55474,3
• Citation: 578 S.W.2d 691
• Parties: Shirley Mae THOMAS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 691

578 S.W.2d 691

Shirley Mae THOMAS, Appellant, v. The STATE of Texas, Appellee.

Nos. 55472-55474.

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

Jan. 17, 1979.

Rehearing En Banc Denied April 11, 1979.

Steven G. Condos, Dallas, for appellant.

Henry M. Wade, Dist. Atty., William M. Lamb, Norman Kinne and Brady W. Sparks, Asst. Dist. Attys., Dallas, for the State.

Before DOUGLAS and TOM G. DAVIS, JJ.

OPINION

WILLIAM J. CORNELIUS, Commissioner.

Appellant was convicted of one charge of murder and two charges of attempted murder. By agreement all three cases were tried together before the same jury. Punishment was set by the jury at fifty years' confinement in the murder case, and fifteen years' confinement in each of the attempted murder cases.

The State's version of the facts was as follows: On December 30, 1975, Michael Robertson, David Whitaker, Randy Marlowe and Alan Shope came to Dallas from Georgia to attend the annual Cotton Bowl game. On Wednesday, December 31, two of the young men met appellant at a bar in downtown Dallas. Appellant propositioned them about having sexual relations with her but the men said they had no money. Nevertheless, after some discussion they took her to their motel. A well-dressed black man was waiting outside and came to the men's motel door on one occasion to inquire if they were having a party. At one point the appellant told the men she was not going to stay around there and "mess with them" anymore, but that she was going to make some money. The men offered to take her back to town but she refused and left the motel. Shope and Robertson then went back to the downtown hotel near the bar and parked. Marlowe then joined them. Shortly afterward, appellant again appeared and indicated that she had changed her mind and wanted to go back to the motel with the men. They returned to the motel where they again saw the black man who had previously come to their door. Whitaker subsequently joined them. Appellant persuaded the men to disrobe and get on the bed. She then disrobed, and after going over to the radio and turning the music up very loud she went into the bathroom. When she came out, she reached into her purse, pulled out a .22 caliber pistol and started shooting. The first shot struck Alan Shope in the left side just above the belt. The second and fatal bullet hit Randy Marlowe in the lower chest. As Shope attempted to stand up he was shot again in the arm. The fourth shot hit Robertson in the right thigh and the last shot hit Robertson in the head as he attempted to disarm the appellant. After Robertson disarmed appellant, he saw her run outside to the parking lot and get into a waiting automobile. In addition to testimony from Robertson, Shope and Whitaker, the State produced several other witnesses, including a bartender who testified that one of the victims was in his lounge most of the afternoon on the day before the shooting.

Appellant took the stand and testified that she lived in Houston, and that she was abducted and kidnapped in Houston by Shope, Robertson, Whitaker and Marlowe and forcibly taken to Dallas. She testified that on the way to Dallas, as well as after their arrival, the four men were taking narcotics and that they raped her and forced her to commit sodomy. She further said that the victims had threatened to kill her and that she started shooting only to escape from the motel room where she was being held captive, and that she did not intend to kill anyone. After the shooting she ran outside where she met a black man, who was a stranger to her, and when she told him what happened he took her first to his daughter's home in Dallas where he got her some clothes and then he drove her to Houston.

The sufficiency of the evidence is not challenged, but appellant presents sixteen grounds of error which she maintains require a reversal of the convictions.

The first nine grounds of error relate to various side-bar remarks of the prosecutor and comments made in his jury summation. The first complaint concerns the following comment during the prosecutor's argument at the punishment phase of the trial:

"You were called upon to assess a sentence, a sentence in the Texas Department of Corrections, and I think I am I think I am being fair with you when I say that whatever your sentences may be, when they leave this trial court, she will have been sentenced; those sentences will have been sentenced by the judge to run concurrently . . .".

Appellant's objection was sustained and the jury was instructed not to consider the remark, but a motion for mistrial was denied.

Ordinarily, any injury from an improper jury argument by a prosecutor is obviated when an objection thereto is sustained and the jury is instructed to disregard the argument. Unless the remarks are so inflammatory that their prejudicial effect cannot reasonably be removed by such an admonition, a reversal of the conviction is not required. Carraway v. State,507 S.W.2d 761 (Tex.Cr.App.1974); Hodge v. State, 488 S.W.2d 779 (Tex.Cr.App.1973). The rule has been applied to improper argument at the punishment stage of the trial which inferred that the accused would not actually be required to serve the length of time specified in the sentence. See Bradley v. State, 489 S.W.2d 896 (Tex.Cr.App.1973); Gray v. State,477 S.W.2d 635 (Tex.Cr.App.1972); and Lenzi v. State, 456 S.W.2d 99 (Tex.Cr.App.1970). The comment should not have been made, but we hold the error was rendered harmless by the sustaining of the objection and the court's instruction.

Also assigned as error is the following remark of the prosecutor during cross-examination of appellant:

"Q Now, you were clear on the other side of the room. You mean that he grabbed you over here behind this bed and pushed you all the way over to the door?

A He caught me around my arm and pushed me over by the door, and took the pistol . . .

Q Came over here and pushed you?

A And he took the pistol from out of my hand, and I got up and grabbed ahold of the door and ran on out the door.

Q I understand what your practiced testimony is; I am trying to ask you some questions, if you will just try to answer those."

Appellant's objection to the comment about "practiced testimony" was sustained and the jury was admonished to disregard it, but a motion for mistrial was denied.

Any error in making an improper remark or asking an improper question will usually be cured or rendered harmless by the sustaining of an objection thereto and instructing the jury to disregard it. Sheppard v. State, 545 S.W.2d 816 (Tex.Cr.App.1977); Mistrot v. State, 471 S.W.2d 831 (Tex.Cr.App.1971); White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969). The record here reflects that appellant's answers were sometimes not responsive to the prosecutor's questions and were merely repetitions of her previous answers. Under the circumstances, and considering the court's action in sustaining the objection and instructing the jury reversible error is not shown.

During cross-examination of appellant the prosecutor inquired about the contents of her purse. She answered that a watch, among other things, was in the purse. When the prosecutor asked if the watch was still there, appellant answered "yes," after which the prosecutor remarked: "Okay, I just wanted to be sure we didn't steal your watch." An objection was sustained and the jury was instructed not to consider the comment, but the court refused to grant a mistrial.

The comment should not have been made, but the action of the court in sustaining the objection and in giving the instruction rendered the error harmless under the principles noted earlier. Compare Jones v. State, 504 S.W.2d 906 (Tex.Cr.App.1974).

Complaint is also made of an incident when the prosecutor allegedly presented unsworn testimony to the jury. The appellant had testified that the men she said had kidnapped her were taking narcotics. In addition, blood samples of the deceased reflected the presence of morphine. The State advanced the theory that appellant was lying, and that any drugs found in the deceased's blood must have been given him before he died, either at the scene of the shooting or at the hospital. The State's expert witness, however, testified that if the drug had been administered under such circumstances it would have been the result of a mistake or of malpractice. On re-direct examination of the expert, the State's counsel attempted to prove that mistakes are commonly made at hospitals. In doing so, he made the following comment: "I am just trying to point out through the Doctor, some mistakes that Parkland made that I am aware of . . .". Appellant's objection was sustained and the court instructed the jury to disregard the comment. Motion for mistrial was made and denied.

We do not consider the comment to be so prejudicial as to require reversal, particularly in view of the sustaining of the objection and the giving of the instruction. Moreover, the State's expert witness ultimately testified that in his opinion the morphine in the deceased's blood was from an illicit rather than a medical source. Under those circumstances, it is difficult to see how appellant could have been harmed by the comment.

Appellant next urges that the following argument of the prosecutor at the punishment stage of the trial constituted reversible error:

"Now, I do not condone, nor do I agree with anyone who engages in prostitution, nor do I condone, nor do I agree with the activities of these boys in the participation, if they were in prostitution; if you go out and mess around with a prostitute, you ought to get killed. Do you believe that ought to be the law, that we ought to kill people who mess around and go out with prostitutes? That is pretty strong, That is what They are having you believe." (Emphasis supplied.)

Again, appellant's objection to the argument was sustained, and the trial court instructed the jury to disregard the comments, but refused to declare a...