Williams v. State

• Decision Date: 12 June 1986
• Docket Number: No. 13-85-269-CR,13-85-269-CR
• Citation: 712 S.W.2d 835
• Parties: Curtis WILLIAMS, a/k/a Curtis Marshall, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 835

712 S.W.2d 835

Curtis WILLIAMS, a/k/a Curtis Marshall, Appellant, v. The STATE of Texas, Appellee.

No. 13-85-269-CR.

Court of Appeals of Texas,

Corpus Christi.

June 12, 1986.

J. Manuel Banales, Corpus Christi, for appellant.

Grant Jones, Dist. Atty., Corpus Christi, for appellee.

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

OPINION

NYE, Chief Justice.

This is an appeal from a conviction for the offense of sexual assault. A jury assessed appellant's punishment at ten years' confinement and a five thousand dollar fine, each probated for ten years. Appellant brings six grounds of error primarily complaining of prosecutorial misconduct. The sufficiency of the evidence to support the conviction is not challenged. We affirm the judgment of the trial court.

In his first two grounds of error, appellant complains of two remarks made by the prosecutor during the jury voir dire examination, revealing to the jury his personal opinion that probation was not an appropriate punishment in cases such as this. While we agree that the prosecutor's personal opinion as to whether probation was appropriate was irrelevant and inappropriate, in this instance we fail to find that appellant was harmed. Although the jury was authorized to assess appellant's punishment at as much as twenty years' imprisonment and a ten thousand dollar fine, the jury only assessed the appellant ten years and a five thousand dollar fine and recommended probation for both the imprisonment and the fine. Appellant was obviously not harmed by either of the prosecutor's remarks regarding probation. In addition, the trial court promptly sustained appellant's objections to both remarks and instructed the jury to disregard them, thereby curing any possible error. See Boyd v. State, 643 S.W.2d 700, 706-07 (Tex.Crim.App.1982). Appellant's first two grounds of error are overruled.

In his fifth ground of error, appellant complains of improper jury argument by the prosecutor in the guilt/innocence phase when he referred to appellant as a "parasite." Appellant objected to the reference, and the jury received another instruction to disregard. His motion for mistrial was denied.

In reviewing whether an improper comment by a prosecutor constitutes reversible error, the test is whether, in the light of the record as a whole, the comment was: 1) extreme or manifestly improper, harmful, and prejudicial; 2) violative of a mandatory statute; or 3) harmful to the accused because it injected damaging new facts into the trial proceeding. Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App.1982); Longoria v. State, 663 S.W.2d 649, 652 (Tex.App.--Corpus Christi 1983, no pet.); Charles v. State, 626 S.W.2d 868, 870 (Tex.App.--Corpus Christi 1981, pet. ref'd).

Appellant cites Renn v. State, 495 S.W.2d 922 (Tex.Crim.App.1973), and Stein v. State, 492 S.W.2d 548 (Tex.Crim.App.1973), as requiring reversal. We do not agree. These two cases involved repeated inflammatory remarks by the prosecution about each defendant. Renn ("hippie," "anti-Christ," "Swastika," and "Communist"); Stein, ("hippie"). In the instant case, the prosecutor only used the word "parasite" once, and made no other derogatory characterizations of appellant. See Hoover v. State, 107 Tex.Cr.R. 600, 298 S.W. 438, 441 (1927) (figurative language used by prosecutor in jury argument referring to the defendant as a "worm" and a "serpent" was held harmless). Any harmful effect of this improper reference was cured by the trial court's immediate instruction to the jury to disregard the comment. Smith v. State, 653 S.W.2d 835, 841 (Tex.App.--Corpus Christi 1982, aff'd; pending on motion for rehearing). The fifth ground of error is overruled.

Appellant next complains that the prosecutor's jury argument in the punishment phase of the trial was improper and requires reversal because the prosecutor invited the jury to speculate on matters not in evidence which denied appellant a fair trial. Specifically, appellant complains of the following portions of the prosecutor's argument:

[Prosecutor, Mr. Babcock]: I do not recommend probation for Mr. Williams, and there's one reason, other than the testimony or the actual testimony that was brought to you in the guilt or innocence phase, and the reason is L.V. L.V. is the difference. L.V. is a twenty-year-old student, a twenty-year-old single girl, has come up here and you saw how she shook when she got up on that stand, and she testified to something that is appropriate only--

THE COURT: You have spoken five minutes.

MR. BABCOCK: --is appropriate only in the punishment phase. You, as members of the jury, were not entitled to know about L.V.

MR. BANALES: Your Honor, we object.

THE COURT: Sustain the objection and instruct the jury to disregard.

MR. BANALES: We are also going to move for a mistrial, Your Honor, please.

THE COURT: Yes, the objection will be overruled. Mistrial denied.

MR. BABCOCK: The purpose of the two phases is at the guilt or innocence phase, you can learn about the accusation for which the accused is sitting on trial. At the punishment phase, you are entitled to hear of reputation testimony--of a person's reputation for being a peaceable and law-abiding citizen. And I did not bring you anyone other than a civilian, a single, female girl who is twenty years old, who goes to Del Mar College and who is a computer programmer or computer science major. And I brought you that testimony.

The record reflects that L.V. was a victim of another sexual assault for which appellant was charged and which was pending at the time of this trial. L.V. testified for the State as a reputation witness only, and testified that appellant's reputation was bad.

The following discussion with the trial court regarding this jury argument was had outside the presence of the jury:

THE COURT: --except that--whether you would have been successful in showing what you say or not, I don't know--except to point out that so far as this record is concerned, L.V. has not been identified as the victim of any subsequent event.

MR. BANALES: But the argument came close to saying that, Your Honor.

THE COURT: Yes, I agree, and that's the reason I sustained your objection.

* * *

* * *

THE COURT: Well, as--Mr. Babcock did go on, and Mr. Babcock has taken the position that he was cut off before he was entitled to state--make his full statement about why it was important to L.V. But this record is silent as to who L.V. is.

MR. BANALES: Well, of course the black and white of it is going to be silent, but the suggestion is very strong, Your Honor. I don't think that there's anyone in the courtroom who doesn't know from the statements made by Mr. Babcock what her status is with regard to the case.

It is improper for a prosecutor to imply to a jury that there exists pertinent evidence which is not available to the jury. Little v. State, 567 S.W.2d 502, 505 (Tex.Crim.App.1978). Appellant argues the prosecutor's statements tended to give the jury the impression that L.V. was a victim of another sexual assault committed by appellant, and that there was something more to this witness' testimony that the jury was allowed to hear.

We do not think the prosecutor's argument necessarily leads to such a conclusion. The prosecutor's statement that the jury had not been entitled to know about L.V. was somewhat ambiguous, but the prosecutor subsequently clarified his statement by explaining that reputation evidence is only appropriate during the punishment phase of the trial. The jury had no information about L.V. other than that she attended the same school as appellant and was familiar with his reputation.

Although the prosecutor's argument was improper, we do not consider that the argument was extreme or manifestly improper or violative of a mandatory statute, or to have injected new facts detrimental to appellant. In any event, any possible harm was again cured by the trial court's prompt instruction to the jury to disregard. Anderson v. State, 633 S.W.2d 851, 855 (Tex.Crim.App.1982). We pause to note again that the appellant received a rather mild punishment from the jury after it heard this argument. We do not find any error which denied appellant a fair trial. Appellant's sixth ground of error is overruled.

By his fourth ground of error, appellant challenges statements made by the prosecutor during the State's opening statement in the guilt/innocence phase which he characterizes as inserting unsworn testimony as to the ultimate issue in the case. Appellant complains of the following remarks:

MR. BABCOCK: May it please the Court, counsel, ladies and gentlemen of the jury panel: This is an unusual case. It's unusual because the victim is black. It's a black female who is going to come before you and tell you her story, what had happened, what the Defendant and his buddy, David Williams, did to her. Both fellows raped this girl.

MR. BANALES: Your Honor, I'm going to object to that. He's testifying. He's asserting facts. He's not testifying--he's not presenting an opening statement, Your Honor, please.

THE COURT: All right. Sustained.

MR. BANALES: We will ask the Court for an instruction to disregard.

THE COURT: The Court will instruct the jurors that statements of counsel do not constitute evidence, but statements of what he expects the proof to establish, and is not to be considered by the jury as evidence, itself.

MR. BANALES: We will move for a mistrial, Your Honor.

THE COURT: Denied.

MR. BABCOCK: On July the twenty-seventh of 1984, [the victim] had been over on the north side part of town, in "The Cut."

MR. BANALES: Your Honor, we are going to object again. His presentation is not an opening statement. The manner of his presentation is more like he's testifying to the jury.

THE COURT: Overruled. (Emphasis added.)

TEX.CODE CRIM.PROC.ANN. art. 36.01(3) (Vernon 1981) sets out the purpose and scope of the State's opening statement. Subsection 3 provides: "The State's attorney shall state to the...