McQueen v. State

HOYT, Justice,

dissenting.

I respectfully dissent. The majority affirms the judgment in this case by, among other things, holding that the prosecutor’s impermissible jury argument was harmless, because it did not inject new and harmful facts before the jury. The majority relies on Mims v. State, 466 S.W.2d 317 (Tex.Crim.App.1971), and Green v. State, 698 S.W.2d 776 (Tex.App.—Fort Worth 1985, no pet.), for the proposition that because no statute was violated and no new and harmful fact was presented to the jury, no harm was done. Essentially Mims stands for the proposition that where the appellant has entered a guilty plea and there are no doubts that the plea was voluntarily made, the case will not be reversed because of improper jury argument. This reading of Mims is understandable because the issue of guilt is resolved by the guilty plea.

But, there are cases that hold that the error is harmful when the State invites the jury to speculate about extraneous matters and a proper objection is made. See Green v. State, 679 S.W.2d 516, 518 (Tex.Crim.App.1984); see also Clemons v. State, 605 S.W.2d 567, 572 (Tex.Crim.App.1980); Stearn v. State, 487 S.W.2d 734 (Tex.Crim. App.1972).

The case before us is more analogous to Robinson v. State, 701 S.W.2d 895 (Tex. Crim.App.1985), where the following argument by the State was admitted over appellant’s objections:

Now, Ladies and Gentlemen, I will just say this, you may think that the testimony was short from two witnesses that I put on the stand in the punishment stage but I submit to you that their testimony was very, very important for this reason, that those were the only questions I was allowed by law to ask that type of witness and (sic) this part of the trial — .
On the other hand, Mr. Corbitt [defense attorney] could ask these witnesses upon what do they base their statements if he wanted to but no, I submit to you it is a reasonable deduction from the failure to ask those witnesses any questions that the answers would have been adverse to his client — .

In Robinson, as here, the State had not presented any evidence of previous convictions. The jury here could have believed that there was some prior conviction for a similar offense and because of the “technicalities” they would not know about it.

When the appellant in the case before us was asked whether he had committed a felony or misdemeanor involving moral turpitude in the United States in the past 10 years, he answered “No.” Without any evidence to the contrary, the State proceeded to imply and suggest in closing argu*278ment that the appellant had been convicted of a crime and that he had been untruthful in his answer. Jury argument is limited to summation of evidence, reasonable deductions from the evidence, answering opposing counsel’s argument, and pleas for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973). The purpose of closing argument is to assist the jury in properly analyzing evidence presented at trial so that it may reach a just and reasonable conclusion based strictly on the evidence and not on matters not admitted in evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App.1980).

The objections made by the appellant could have been more specific, but were adequate because the error was obvious. See Roeder v. State, 688 S.W.2d 856, 859 (Tex.Crim.App.1985). A general misunderstanding by the public of why evidence is sometimes excluded needs no contribution from members of the bar. Similar conduct serves to undermine the entire legal system, potentially depriving all citizens of life, liberty, and the assurance of due process of law. I would sustain ground of error four and reverse and remand the cause for a new trial.