Arthur Perry Brown v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-91-035-CR

ARTHUR PERRY BROWN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 90-910-C

O P I N I O N

Arthur Perry Brown appeals his conviction for burglary of a building. Brown was found guilty by a jury, and, as a result of two prior convictions that enhanced the range of punishment, the jury assessed punishment at fifty-five years in prison.

On September 16, 1990, police officers responded to a burglary-in-progress call, and upon arriving at the scene, saw two individuals exiting the building through the bottom half of a broken glass door in the front of the building. The first person out of the building struck Officer Barrington in the chest, and the suspect's shirt came off in the ensuing struggle before he escaped. Sergeant Beatty, who observed the struggle, began pursuing the suspect along with Barrington. Brown was arrested moments later by two other officers.

Brown contends in point one that the prosecutor's repeated injection of his personal opinion of Brown's guilt was manifestly improper, could not be cured by an instruction to disregard, and denied him a fair trail and due process of law. During the jury voir dire, the prosecutor made the following remarks:

[Prosecutor]: Thank you. Let me tell you, I have been over this at length, and sometimes I think jurors get a little bit of the wrong impression. I have done this, in fairness to the defendant, I mean you all are going to be the judge of the facts, and you all are going to have to decide, and it wouldn't be fair if you went into a trial, with your mind just automatically made up, but let me stress at the outset, that you all decide the facts, but I guarantee you, as a prosecutor, if we didn't feel like we had a case here, and I didn't feel like the officers were going to testify honestly

[Brown's Attorney]: Your Honor, I am going to object. That is interjecting his opinion, and it is not appropriate in this case.

COURT: Sustained.

[Brown's Attorney]: I would ask the jury panel be instructed.

COURT: I will instruct the jury, they will disregard the last statement of the prosecutor for any purpose.

[Brown's Attorney]: We move for a mistrial, Judge.

COURT: I overrule the Motion for Mistrial.

Brown also complains that the prosecutor injected his opinion of the case into the state's closing argument during the guilt-innocence phase of the trial:

[Prosecutor]: If we are going to have people breaking into buildings, and going out and attacking police officers, and the officers then running them down, catching them right there at the scene of the crime, here is a picture, this is evidence, you can take it to the jury room, just a short distance from where the crime occurred, just a couple of minutes later, if you want to turn somebody loose on that kind of evidence, there is nothing I can do about it. You have a say whether we are going to be a law abiding community, and have people out here like that

[Brown's Attorney]: I object to this, Judge, that is an improper argument at this time.

COURT: Overruled.

[Prosecutor]: running around on the street, folks, I submit to you that this is about as good a Burglary case as you are ever going to have. The only way it could have been any better is

[Brown's Attorney]: I object, that is an opinion of the prosecutor only.

COURT: I sustain the objection, and instruct the jury they will disregard the last statement as to what his opinion is for any purpose whatsoever.

[Brown's Attorney]: Move for a mistrial Judge.

COURT: Overrule the Motion for Mistrial.

[Prosecutor]: Folks, you heard the evidence, this is a good case. This Defendant, under the evidence, is guilty. Thank you.

For a prosecutor to argue outside the record and inject personal opinion is improper. Boyd v. State, 643 S.W.2d 700, 706 (Tex. Crim. App. [Panel Op.] 1982). However, when the trial court instructs the jury to disregard the improper argument but denies the defendant's motion for mistrial, error results only when the argument is extreme or manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision, and was thus so inflammatory that its prejudicial effect could not reasonably be removed from the minds of the jury by the instruction given. Washington v. State, 822 S.W.2d 110, 120 (Tex. App. Waco 1991, pet. granted). Based on our examination of the jury voir dire and the final arguments, we hold that the prejudicial effect of the improper comment and argument was removed from the minds of the jurors by the court's instructions to disregard the remarks, and thus, no error occurred in denying the motions for mistrial. See also Wilkerson v. State, 510 S.W.2d 589, 591-92 (Tex. Crim. App. 1974). We overrule point of error one.

In point two, Brown contends that the court erred in refusing to grant an instructed verdict after the state rested its case in chief because the evidence was insufficient to prove that he was the person who committed the burglary. We need not review the propriety of overruling his motion for an instructed verdict, however, because Brown waived his complaint that, when the state rested, there was insufficient evidence to prove that he was the person who committed the offense. See Kuykendall v. State, 609 S.W.2d 791, 794 (Tex. Crim. App. [Panel Op.] 1980). Point of error two is overruled.

In point three, Brown contends that the trial court erred in placing the guilty-verdict form prior to the not-guilty-verdict form in the charge of the court. He argues that the charge, as submitted, constituted a comment on the weight of the evidence and violated his right to the presumption of innocence. We disagree. The charge to the jury explicitly set out the guilty and not-guilty alternatives available for the jury's consideration. Both verdict forms were printed in identical type on a single page and no emphasis was placed on the guilty-verdict form.

After the trial court defined the elements of the offense, properly placing the burden of proof on the state, the court specifically instructed the jury as follows:

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense charged, and say by your verdict "not guilty."

The court also instructed the jury that "[a]ll persons are presumed to be innocent and no person can be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt."

Relying on Callins v. State, 780 S.W.2d 176, 190 (Tex. Crim. App. 1989) (on rehearing), we hold that, considered as a whole, the substantive charge and the verdict forms gave the jury the opportunity to consider both possibilities in rendering its verdict. The court's charge expressly reminded the jury of the presumption of innocence. Furthermore, the specific and thorough nature of the substantive charge eliminated the possibility that the jury would consider the order of the verdict forms as a comment by the court on the weight of the evidence. See id. at 191. Point of error three is overruled.

In point four, Brown contends that the following closing arguments by the prosecutor during the guilt-innocence phase of the trial improperly referred to Brown's failure to testify:

[Prosecutor]: You know, this whole thing, took probably, you can tell from the short distance, it took about two minutes with the Officer that was chasing a man that was running from him, that virtually never got out of his sight, and was only out of his sight for seconds, maybe not even that much when they turned the corner here. So, folks, we have just a clear case. You know from the evidence, what we want you to base your verdict on is just the evidence, [Brown's Attorney] can't give you any logical reason why his client would be out there without his shirt

[Brown's Attorney]: Judge, that is a comment on the failure of the defendant to testify, and we would object under the United States and Texas Constitution.

COURT: I sustain the objection, and instruct the jury to disregard the last statement of Counsel of the State for any purpose.

[Brown's Attorney]: We move for a mistrial, Judge.

COURT: Overrule the Motion for Mistrial.

[Prosecutor]: You know, he wants you to think his client was just strolling around there.

[Brown's Attorney]: I object, your Honor, once again, he is commenting on the failure of the Defendant to testify.

COURT: Overrule the objection.

[Prosecutor]: Thank You. . . . Folks, all I want you to do is just look at the evidence from the witness stand. That's all we are talking about, just the evidence presented from the witness stand. [Brown's Attorney] can't give you any reason from the evidence presented from the witness stand as to why his client would be out there walking at three a.m., in the morning.

[Brown's Attorney]: Your honor, I would object. That is trying to put a burden on the defense, and the defense has no burden in this case.

COURT: Overruled.

Impermissible comment upon an accused's failure to testify is made when the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure to testify. McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871, 107 S. Ct. 239, 93 L. Ed. 2d 164 (1986). It is not sufficient that the language implies or alludes to the failure to testify; the language must necessarily refer to the failure to testify. Id. An indirect allusion that might refer to the failure of the accused to testify does not require reversal. Cannon v. State, 691 S.W.2d 664, 677 (Tex. Crim. App. 1985), cert. denied, 474 U.S. 1110, 106 S. Ct. 897, 88 L. Ed. 2d 931 (1986). In the context given, the statements were neither manifestly intended nor of such character that the jury would naturally and necessarily take them as a comment on Brown's failure to testify. Moreover, Brown's attorney argued that the arresting officer "doesn't know how the Defendant came to be there." The entire theme of his argument was that, although the officers believed they had the right man, because of the confusion accompanying the chase, the evidence was not sufficient to convince the jury beyond a reasonable doubt that Brown was the one who left his shirt with Officer Barrington after escaping the building. Therefore, the prosecutor's statements were invited by the argument of Brown's counsel. See McKay, 707 S.W.2d at 37. Point of error four is overruled.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 8, 1992

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