COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
CHARLES EDWARD TURNER, )
) No. 08-03-00274-CR
Appellant, )
) Appeal from the
v. )
) 358th District Court
THE STATE OF TEXAS, )
) of Ector County, Texas
Appellee. )
) (TC# D-30,243)
)
O P I N I O N
Appellant Charles Edward Turner appeals his murder conviction. A jury found Appellant guilty of murder and assessed punishment at 25 years= imprisonment. In his sole issue on appeal, Appellant contends the trial court erred in overruling his objection to the State=s improper jury argument. We affirm.
On the evening of July 29, 2002, Detective Buzzy Abalos of the Odessa Police Department received a call to investigate a homicide at the Spanish Oaks Apartments Complex in Odessa. Police officers were already at the scene when Detective Abalos arrived and he learned that the victim, eighteen-year-old Christopher Blair, had been shot and pronounced dead on arrival at the hospital. Detective Abalos was also informed that the police had two suspects in custody, one of whom was Appellant. By the time Detective Abalos had arrived, Texas Ranger Jess Malone had interrogated Appellant and Appellant had admitted that he had shot Blair.
Suzanne Drennan, Blair=s mother, made several visits to Blair=s apartment on July 29. Her youngest son, D.D., had called her at 4:30 in the morning, asking her to pick him up because Blair and Blair=s girlfriend were arguing. Ms. Drennan returned a second time at 10:30 a.m. after receiving a call from the girlfriend. The girlfriend was concerned that Blair had taken too many Xanax.[1] After talking with Blair for about an hour, they left together to pick up Blair=s girlfriend and then returned to the apartment around 2 p.m. Blair left twice when Ms. Drennan was there. Ms. Drennan left about 6 p.m. to pick up her youngest son at her house and then returned to Blair=s apartment at 8 p.m. Ms. Drennan saw Blair walking from an apartment on the west side of the complex. He appeared to be walking straight, upright, and very calm. Ms. Drennan stayed until 9:30 p.m.
At 9:51 p.m., Ms. Drennan=s friend called her and told her that Blair was out in the middle of the parking lot with knives. Within twenty minutes, Ms. Drennan returned to Blair=s apartment complex. Blair entered his apartment and Ms. Drennan followed behind him. Ms. Drennan learned from her friend that her son was being accused of breaking into an apartment. Blair quickly walked out of the apartment to the south side of the apartment complex, with Ms. Drennan=s friend following behind.[2] Blair then went back to his apartment, but before he reached the front door of the apartment, Ms. Drennan heard him say AI will cut up every one of you n**s.@ Blair and the friend entered the apartment and Ms. Drennan pulled the screen door closed. Ms. Drennan had her back turned when she heard her youngest son say, AHe=s got a gun.@ As soon as she turned, she saw a black man at the screen door and heard him say, AI am not f** playing with you.@ Ms. Drennan identified Appellant as the man she had seen at the door.[3] Ms. Drennan lost sight of Appellant when he walked out of the light above the door. Ms. Drennan could not see or hear Blair from where she was standing in the apartment. Within moments, her son exited the apartment and she heard gunshots. Ms. Drennan left the apartment and saw that her son had been shot in the chest and was laying on the ground in the parking lot. According to Ms. Drennan=s friend, Appellant shot Blair as Blair was trying to back away from him.
Police officers recovered a large kitchen knife in front of Blair=s residence. They also found some Xanax outside Apartment Number 12, which was Appellant=s residence. At the hospital, officers found a butterfly knife in Blair=s pants pocket. Detective Abalos testified that the butterfly knife is an illegal weapon.
According to witnesses, there had been an earlier confrontation between Appellant and Blair about half an hour before the shooting. In that confrontation, amid much cursing and shouting, Appellant claimed that Blair had stolen his money and his Astuff.@ Blair denied the accusations. Witnesses saw Blair yelling and swinging a butterfly knife around. Blair stated that he was going inside to get a gun, but returned with a kitchen knife. Blair said Ahe was going to kill all those n**s@ and everyone who had been watching the argument went inside their apartments. Appellant and another black man were then seen leaving the apartment complex in a car. Blair remained outside yelling in the parking lot and walking around with the knives.
About fifteen to twenty minutes later, witnesses observed the second and fatal confrontation between Appellant and Blair. Witnesses saw Appellant and Wilburn return to the apartment complex. They exited the car and Wilburn walked to his cousin=s apartment, but Appellant opened the trunk of the car, pulled out a gun, and started walking toward Blair=s apartment. Witnesses heard Appellant racking a round into the gun chamber. Blair was coming out of his apartment as Appellant approached. Blair did not display the butterfly knife, but did have the kitchen knife. They began arguing again about Blair allegedly stealing Appellant=s Astuff@ and Appellant was repeatedly heard saying that Ahe wasn=t playing@ with Blair. One witness heard Appellant state, AI=ll kill you@ to Blair. Blair started walking between the parked cars, and according to one witness, Blair put down the kitchen knife by a tire. Appellant followed Blair to the middle of the parking lot and then shot him. One witness testified to hearing Appellant say, AI killed his ass@ as he stood over the body.
Appellant was later apprehended in the apartment of another resident in the complex. Later that evening, Texas Ranger Jess Malone interviewed Appellant. During the taped interview, Appellant stated that he lived in Apartment Number 12, and earlier that day, he had been drunk and had fallen asleep. He was awoken by friends who told him that AChris@ from Apartment Number 14 had been rummaging through his apartment while he was asleep. Money was missing from Appellant=s pockets. Appellant also stated that Astuff@ was missing. Appellant confronted Blair and he pulled out the butterfly knife. According to Appellant, Blair threatened to stab him. Appellant left with a friend, but later came back with a gun and asked about his money again. Blair had the knives and came towards Appellant. Appellant admitted that he shot Blair during their argument.
Appellant=s friend, Marquette Wilburn, testified that both his cousin and Appellant lived in the Spanish Oaks Apartment Complex on July 29. He witnessed the two confrontations between Appellant and Blair. Appellant confronted Blair, but Blair denied breaking into Appellant=s residence. Wilburn called Appellant away when Blair pulled a knife out of his back pocket. He and Appellant talked by the side of the apartment building for ten to fifteen minutes. They then walked around the building to where the confrontation had occurred. Wilburn walked to his cousin=s apartment and as Appellant made his way back to his apartment, Blair came back outside. Wilburn denied leaving the area in a vehicle after the first confrontation and denied any knowledge about the firearm or how Appellant had acquired it.
In his sole issue, Appellant argues that the trial court erred in overruling his objection to the prosecutor=s remarks during closing argument, which he asserts were outside the record. During closing argument, the prosecutor stated:
He [Blair] had no business talking the way he talked about other citizens. But that didn=t give anybody on this earth the right to murder him. Nobody had the right to kill him over what he said. And even if he was in the other boy=s apartment, that didn=t give Charles the right to go and kill him. Even if he stole his money or his drugs.
Defense counsel objected, arguing that the reference to stealing drugs was outside the record. At first, the trial court sustained the objection, but after the State argued that there was evidence that Blair had stolen Appellant=s Astuff, money, or drugs,@ the trial court reversed its ruling and overruled the objection. Appellant argues on appeal that there was no evidence introduced at trial that indicated he believed Blair had stolen his drugs.
It is well settled that proper jury argument must fall within one of the following four categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. See Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App. 1992)(en banc); Calderon v. State, 950 S.W.2d 121, 133 (Tex.App.--El Paso 1997, no pet.). Wide latitude is given to counsel in drawing inferences from the evidence provided the inferences are reasonable, fair, legitimate, and offered in good faith. Denison v. State, 651 S.W.2d 754, 761-62 (Tex.Crim.App. 1983)(en banc).
In the present case, several witnesses testified that Appellant believed Blair had broken into his apartment and taken his money and his Astuff.@ In his taped statement to police, Appellant stated that he was awaken by friends who told him that Blair had been inside his apartment while he was asleep. Money was missing from Appellant=s pockets. Appellant also stated that Astuff@ was missing without further elaboration. Ms. Drennan testified that Blair was high on Xanax throughout the day and a Xanax-type drug was detected in Blair=s system. The police found Xanax outside Appellant=s residence. While there was no direct evidence that Appellant believed that in addition to money, Blair had taken his drugs, it was a reasonable deduction from the evidence to argue that Blair could have stolen money or drugs from Appellant. Thus, the trial court did not err in overruling Appellant=s objection because the prosecutor=s remarks are within the bounds of proper argument.
Assuming arguendo that the prosecutor=s remarks were improper jury argument, we would nevertheless find that the error was harmless. If a jury argument exceeds the bounds of proper argument, the trial court erroneous ruling of a defendant=s objection is not reversible error unless it affected his substantial rights. Tex.R.App.P. 44.2 (b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (Op. on reh=g). We employ three factors to determine whether the improper jury argument demands reversal: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor=s remarks); (2) the measures adopted to cure the misconduct (the effect of any cautionary instruction given by the court); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Threadgill v. State, 146 S.W.3d 654, 666-67 (Tex.Crim.App. 2004); Martinez, 17 S.W.3d at 692-93.
Here, the first factor does not weigh very heavily in Appellant=s favor. The misconduct, if any, was not particularly severe. Appellant argues that the statement undermined his
self-defense theory and introduced extraneous acts evidence. However, it is undisputed that Appellant believed at the very least that Blair had taken money and Astuff@ from Appellant-- evidence which would have likewise undermined his self-defense theory. Further, the prosecutor=s remarks would not have necessarily led the jury to speculate that Appellant was dealing drugs. With regard to the second factor, we find it weighs in favor of Appellant because no curative action was taken by the trial court. The third factor, however, weighs very heavily in favor of the State. After reviewing the entire record, we believe that conviction was certain, particularly given Appellant=s admission, physical evidence recovered from the scene, and witnesses= testimony. Given the mildness of the prosecutor=s remarks and the strength of the State=s case, we would find the error, if any, was harmless. Appellant=s sole issue is overruled.
We affirm the trial court=s judgment.
May 7, 2005
DAVID WELLINGTON CHEW, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)
[1] Ms. Drennan testified that on that day, Blair was high on Xanax, an anti-anxiety narcotic and downer. Blair did not have a prescription for Xanax and she believed he had obtained the drugs from someone else. The toxicology report confirmed the presence of benzodiazepine, an anti-depressant anti-anxiety medication sold under the trade name Xanax, in Blair=s system, along with traces of marijuana and cocaine.
[2] According to Ms. Drennan=s friend, Appellant confronted Blair with a gun, demanding that Blair give him back his Astuff.@ The friend did not know to what Astuff@ Appellant was referring.
[3] On cross-examination, Ms. Drennan also testified that Appellant came to Blair=s apartment between 2 p.m. and 4 p.m., asking for a ride to the store. Neither she nor the girlfriend would give him a ride. Appellant asked Blair as well, but Ms. Drennan had taken the car keys from him and told Appellant that Blair was a little high.