IN THE
TENTH COURT OF APPEALS
No. 10-93-209-CV
DON O. MARTIN, ET AL.,
Appellants
v.
BARNEY GIESEN,
Appellee
From the 152nd District Court
Harris County, Texas
Trial Court # 90-64529
MEMORANDUM OPINION
Appellants filed a motion in this court on October 26, 1993, to dismiss their appeal stating that the underlying dispute had been fully compromised and settled and they no longer desired to prosecute this appeal.
Appellants state that notice of the request for dismissal has been provided to all other parties to the appeal as reflected by the attached certificate of service.
Appellants' request is hereby granted. The appeal is dismissed.
PER CURIAM
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Dismissed
Opinion delivered and filed November 3, 1993
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0; Tillis testified that he had gone to the Bagby house to buy drugs—$300 worth. He talked to Jesse, who showed him some drugs, but when they could not agree on an amount of drugs, Tillis left. He decided to rob Jesse and went to find his friend, Jason Coleman (J.J.), whom he knew had a gun. Tillis testified that J.J. was supposed to hold the gun on Jesse while Tillis went through his pockets. Tillis said J.J. "[w]asn't supposed to shoot anybody." They went back to Bagby, but Jesse was not there. They returned later, after seeing Jesse's car outside. According to Tillis, when they went in the house, J.J. told Jesse to "drop out"—a street term for a robbery. Tillis said he heard two shots, got scared, and ran out. He said he saw J.J. going through Jesse's pockets.
Other witnesses were called to either prove or disprove that Tillis had the weapon. The court charged the jury on the theories of parties and conspiracy and included a charge on the lesser-included offense of aggravated robbery. As noted above, the jury found Tillis guilty of capital murder.
Tillis assigns four points of error, all arising out of the State's closing argument. The State points out, and Tillis agrees, that no objection was made in any of the four instances; thus, none of the arguments will result in reversal unless found to be so prejudicial that an instruction to disregard would not have cured any harm that might have resulted. See Briddle v. State, 742 S.W.2d 379, 389 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 986, 109 S. Ct. 543, 102 L. Ed. 2d 573 (1988). Error in jury argument is not waived by a failure to object where the argument is manifestly improper, violates some mandatory statute, or injects some new fact harmful to the defendant's case. Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 908, 111 S. Ct. 279, 112 L. Ed. 2d 234 (1990). In determining whether a statement is manifestly improper, harmful, and prejudicial, we look at the record as a whole. Id.
Two of Tillis' complaints assert that the prosecutor "struck at him over the shoulders of counsel." The other two assert error when the prosecutor injected his personal opinion into the argument. We will review these complaints in the light of the entire record, including Tillis' own testimony that he engaged in a conspiracy to rob Jesse. Even if we assume that the jury accepted Tillis testimony that J.J. had the gun, we must still consider that he judicially admitted each and every element of the theory of capital murder on which the court charged the jury, with the possible exception of J.J.'s intent to kill Randy.
Proper jury argument falls within one of the following categories: (1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to the opponent's argument; or (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). All other arguments are improper. See id.
Special concern should be shown for final arguments which constitute uninvited and unsubstantiated accusations of improper conduct by a defendant's attorney. Gomez v. State, 704 S.W.2d 770, 771 (Tex. Crim. App. 1985) (citing Boyde v. State, 513 S.W.2d 588 (Tex. Crim. App. 1974)). Reversal usually results from improper arguments making direct reference to a defense attorney, combined with statements that infer defense counsel might manufacture evidence or offer the testimony of witnesses who give false information. See Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App. 1990). In Boyde, the Court said the danger is because the "canons of ethics are not generally understood by the public from which the members of the jury panel are drawn. Many do not believe an attorney should undertake the defense of a person charged with a crime particularly if there is some indication that the defendant is guilty." Boyde, 513 S.W.2d at 592 (quoting Bray v. State, 478 S.W.2d 89, 90 (Tex. Crim. App. 1972)). "This general misunderstanding by the public serves to contribute to the prejudicial effect of an argument by a prosecutor which strikes at a member of the bar for representing a person accused of crime." Id.
In the first complaint, Tillis says that the prosecutor struck at him over the shoulders of counsel when he began his closing argument:
Members of the jury, it is a defense attorney's job to be dissatisfied with the State's case. Or we can be surprised that [counsel] says he's dissatisfied with the case we brought to you. I would have thought that he would at least concede that shooting somebody in the back of the head that you were intending to kill them. Apparently not. Apparently [counsel] doesn't believe that when you take a gun, shoot somebody in the mouth, there is an explosion of blood, a person lying there like they are dead, you walk into the room, then you turn around and shoot another human being in the back of the head with a firearm that you know is loaded and will fire, and what you have just done to the person you shot previously, that you are not trying to kill anybody. That I think is the ludicrousness of the defense position in this case, the position that they are having to try to take throughout the case.
Although the prosecutor made direct reference to the defense attorney, it was not combined with statements that inferred defense counsel might have manufactured evidence or knowingly offered witnesses who gave false information. Thus, we cannot say that under the record presented the argument was so prejudicial that an instruction to disregard would not have cured any harm. Briddle, 742 S.W.2d at 389. We overrule point one.
Tillis' fourth complaint is about another reference to defense counsel during the closing argument. The prosecutor said:
Folks, this confabulation business. You know, [counsel] says, well, maybe that she saw him when she left. There is no evidence of that at all. There is sure no evidence from this man who says I never saw her at all. And there is sure no evidence from her. The confabulation comes from [counsel].
Here, the prosecutor's argument was not directed at defense counsel, but at defense counsel's argument. "Counsel is generally afforded wide latitude in drawing inferences from the record, as long as such inferences are reasonable and offered in good faith." Cantu v State, 842 S.W.2d 667, 690 (Tex. Crim. App. 1992), cert. denied, ——— U.S. ———, 113 S. Ct. 3046, 125 L. Ed. 2d 731 (1993). Additionally, the "confabulation" argument was made in response to an earlier argument by defense counsel and was proper as an answer to that argument. Alejandro, 493 S.W.2d at 231. Point four is overruled.
Tillis's second point complains of the prosecutor's saying:
I submit to you -- I don't want to back up on this at all. I submit to you under the evidence it is the State's position this defendant committed that murder. But we have to prove to all of you beyond a reasonable doubt. And I can't look in your minds and hearts and say because this man got up here and cried before you that some of you may not feel sympathy for him.
We find this argument to be drawn from the evidence and thus not improper. Id. Point two is overruled.
The third point asserts that the prosecutor injected his personal opinion of Tillis' testimony when he said:
I think that it is unfortunate that they have closed nominations for the Academy Awards because I think when you saw [Tillis'] testimony, that was one of the better acts I've seen here. But I understand when jurors see a person cry like that, sometimes they wonder is he telling us the truth.
Tillis also points to a later reference to him as "Mr. Sensitivity."
The State concedes that this argument could be construed as an expression of personal opinion about Tillis' demeanor but points out that the jury had the same opportunity to observe Tillis while he testified. Assuming that it was an improper jury argument, we do not find that under the entire record it was extreme or manifestly improper or injected new and harmful facts. Willis, 785 S.W.2d at 385. Thus, we cannot conclude that the argument calls for reversal. We overrule point three.
In summary we conclude that the arguments Tillis complains of, in light of the record as a whole, made in the absence of objections, either were not improper or were not so prejudicial as to reflect a violation of due process or due course of law to the extent that they deprived him of a fair and impartial trial. Miller v. State, 741 S.W.2d 382, 393 (Tex. Crim. App. 1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2835, 100 L. Ed. 2d 935 (1988).
We affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed October 25, 1995
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