Larry Allen Jackson v. The State of Texas--Appeal from 85th District Court of Brazos County

AFFIRMED

DECEMBER 13, 1990

NO. 10-89-239-CR

Trial Court

# 17,540-85

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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LARRY ALLEN JACKSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 85th Judicial District Court

Brazos County, Texas

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O P I N I O N

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In this case the Appellant Larry Allen Jackson was charged by indictment with Burglary of a Habitation with Intent to Commit Armed Kidnapping on or about April 29, 1987, accompanied by an enhancement paragraph charging him with a previous conviction for murder on June 4, 1980. Appellant pleaded not guilty to the main charge, and after trial the jury found him guilty and assessed his punishment at thirty (30) years in the Institutional Division of the Texas Department of Criminal Justice. Appellant comes to this court on three points of error. We have carefully considered all of Appellant's points and contentions and respectfully overrule same and affirm the trial court's judgment.

At about 2:00 o'clock A.M. on April 29, 1987, the Appellant entered the home of Ms. Betty Sellers without her consent and tried to kidnap her. Before Appellant entered her house, he called to Ms. Sellers from outside and asked her to come out, whereupon she told Appellant to go away and then called 911 on the telephone for the police. While she was on the phone, Appellant took a chair and broke out a window on the front of her house, the window being in the room where her 19-year-old son was sleeping. Upon hearing the shattering of glass, Ms. Sellers dropped the telephone and ran to her son's room where she saw Appellant coming through the window. The Appellant insisted that Ms. Sellers come with him. When she refused to go, Appellant restrained her by holding her around the neck with one arm and hand while he held a pistol in the other hand pointing it towards her son.

Officers Tyler and Carver of the Bryan Police Department responded to the call placed by Ms. Sellers. When they arrived at the scene they saw the broken window in the front of the house. Inside the house in front of the broken window, Ms. Seller's son was gesturing with his hands, pointing to the other side of the house where the living room and front door were located. As Officer Tyler approached the front door to open it, the door was being opened from the inside by the Appellant who was backing out of the door with Betty Sellers and the handgun.

Appellant's first point of error asserts that the evidence is insufficient because the State failed to prove the intent of the Appellant to commit the felony offense of kidnapping.

The indictment in this case alleged an offense under Section 30.02(a)(1) of the Penal Code, and in effect alleged that Appellant entered a habitation by intruding his body into said habitation with intent to commit kidnapping of Betty Marie Sellers.

The intent with which entrance is made is an essential element of the offense of burglary and therefore must be pleaded and proved. Lewis v. State (Tex.Cr.App. 1986) 715 S.W.2d 655 and the cases cited at page 657. It is well settled that such intent (as here, for the purpose of committing the offense of kidnapping) may be inferred from the circumstances. Williams v. State Tex.Cr.App. 1976) 537 S.W.2d 936, 938.

Without repeating the physical facts that took place at and before Appellant's arrest, suffice it to say that Appellant's intent to commit kidnapping was very clearly demonstrated by his acts alone and words spoken at and about the time of his arrest. Appellant's first point of error is overruled.

By his second point of error Appellant contends the trial court erred in receiving testimony that Appellant's reputation was "bad" when (Appellant says) the proper predicate had not been established.

Guadalupe Villareal, Chief of Police of Eagle Lake, Texas, testified that he knew Appellant, and that he had arrested Appellant for murder in Eagle Lake, Colorado County, Texas, in 1980. The Chief then testified that he was familiar with Appellant's reputation for being a peaceable and law-abiding citizen, and that such reputation was "bad." It was established on Appellant's cross-examination and on voir dire examination by the State that Chief Villareal's testimony pertained only to Appellant's reputation in Eagle Lake, Colorado County, ten years ago.

This testimony was relevant and admissible based upon the personal knowledge of the witness, and was helpful in determining a fact issue. See Texas Rules of Criminal Evidence, Rules 602 and 701. Appellant's second point of error is overruled.

Appellant's third and final point of error argues that the trial court erred in failing to grant Appellant's motion for mistrial because of the prejudicial and improper argument of the State's attorney. We do not agree.

In the argument at the end of the punishment phase, Appellant's counsel urged the jury to consider the lack of any evidence of convictions against Appellant from April 29, 1987 (the date of the alleged offense) to September 14, 1989 (the date of trial.) Appellant's attorney argued by inference that there were no convictions during that period of time. In response, the State's attorney argued that "the State can only bring you convictions. They cannot bring you anything else. It has to be a final conviction." The Appellant objected, stating that the State was implying that there were other bad acts. The trial court sustained the objection and instructed the jury to disregard the prosecutor's remarks for any purpose.

During Appellant's argument he repeatedly inferred, over the State's objections which were overruled by the court, that there was no other evidence in recent years that Appellant was not law abiding and peaceful. In our opinion this State argument complained of by Appellant was invited by the Appellant's previous argument and therefore was not improper. See Albiar v, State (Tex.Cr.App. En Banc 1987) 739 S.W.2d 360, 632.

In any event, even should the argument have been improper, the trial court sustained the objection and instructed the jury not to consider it which, in our opinion, would render the error harmless. Brown v.State (Tex.Cr.App. En Banc 1985) 692 S.W.2d 497, 502. Ordinarily any injury from improper jury argument is obviated when the court instructs the jury to disregard, unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonishment. See McKay v. State (Tex.Cr.App. 1985 En Banc) 707 S.W.2d 23 and the cases cited at page 37. We are of opinion and hold that the trial court's instruction cured the erroneous argument, if any there was. We overrule Appellant's third and final point of error.

Judgment of the trial court is affirmed.

AFFIRMED

JOHN A. JAMES, JR.

DO NOT PUBLISH Justice (Retired)

[Participating: Chief Justice Thomas, Justice Means, and Justice James (Retired)]