Willie Crawford Bennett v. The State of Texas--Appeal from 283rd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-162-CR

WILLIE CRAWFORD BENNETT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 283rd District Court

Dallas County, Texas

Trial Court # F93-71085-IT

O P I N I O N

Appellant Bennett appeals his conviction for burglary of a building (enhanced by one prior felony conviction), for which he was sentenced to thirty-five years in the Texas Department of Criminal Justice.

Rocky Bowen, a security guard for Pilgrim's Pride, was on duty with Clark Holt, in the security office, at 1:00 A.M. on December 23, 1993. He saw a man he identified as Appellant carrying a microwave oven out of the door. He picked up the intercom and asked Appellant what he was doing. Appellant ran. Bowen and Holt followed Appellant and saw him throw the microwave oven into a trash can and climb the back fence. They chased him around the corner into a parking lot. Bowen held a gun on Appellant and took him back into the plant and called the police. While waiting for the police, Appellant asked Bowen how he could have seen him when he was not in the guard house. Bowen informed Appellant he was in a guard house other than the one Appellant was referring to.

Officer Kelly arrived and searched Appellant and found a screw driver, a pair of pliers and a box cutter in his pocket. Officer Akon arrived and found the microwave oven in a trash can outside the building.

The jury found Appellant guilty and found the alleged prior felony conviction to be true. Appellant elected to have the judge assess punishment, and he sentenced Appellant to thirty-five years in prison.

Appellant appeals on four points of error, and Appellant has filed a pro se brief asserting two additional points.

Point one: "The trial judge erred in permitting the State's attorney to strike at the appellant through his counsel."

In the prosecutor's jury argument at the guilt-innocence phase, the following occurred:

PROSECUTOR: Now if you've ever wondered why people don't get involved in crime prevention; if you've ever wondered, well I don't want to get involved, you now have a good reason whenever you saw the way [witness] Bowen was treated by Mr. Isenberg.

MR. ISENBERG: I object to that. He's striking at the defendant over the head of counsel.

THE COURT: Overruled.

PROSECUTOR: It's shameful, what about - -

MR. ISENBERG: I'm going to object to that. There's nothing shameful about my examination of Mr. Bowen at all.

THE COURT: I can't comment. Overruled.

PROSECUTOR: If you say, well, Mr. Jones, what are you talking about? I'm about to tell you. He spent ten minutes raking Mr. Bowen around concerning the security cameras, or the surveillance cameras. Do you remember that conversation yesterday about `well, we had them about seven years ago, and we took them down'? That was pretty clear-cut. It took me five seconds to say that.

But how long did Mr. Isenberg spend with Mr. Bowen yesterday on that very issue? About ten minutes, when the very issue was clear. They took them down seven years ago. They don't work. So, see there was no call for that. That's just ragging him around.

Well what else are you talking about, Mr. Jones? Whenever this morning, Mr. Isenberg spent fifteen minutes trying to dictate or find out the distance between the guard house and the door that the burglar came in on. Remember, how they got him up here, trying to say, well, a truck that is fifteen feet and a flat bed so many feet, and if you multiply five feet times five, how many and the bottom line was Mr. Isenberg asked Mr. Bowen `well, what do you get when you'? I think it was forty-six and forty-six. I don't know. The bottom line is this. He ragged him around and ragged him around and ragged him around because what Mr. Bowen says partially, not by itself, convicts this man.

Appellant argues that the trial court erred in overruling his objection because the prosecutor's argument amounted to an attack on Appellant over the shoulders of his counsel.

In order for a disparaging comment directed at defense counsel to be reversible error, it must be directed at the defendant via his counsel, for the purpose of inflaming the minds of the jurors to the prejudice of the accused. Todd v. State, 598 S.W.2d 286, 297 (Tex. Crim. App. 1980); Haynes v. State, 727 S.W.2d 294, 298 (Tex. App. Houston [1st Dist.] 1987).

Here, the prosecutor only told the jury that defense counsel treated a witness impolitely. This cannot be construed as saying anything deleterious about Appellant himself. Moreover, the reference by the prosecutor to defense counsel's treatment of the witness was certainly not extreme or manifestly improper.

Point one is overruled.

Point two: "The trial court erred in admitting, over objection, objects found on the appellant when he was arrested, as they were irrelevant to any contested issue at trial."

At the time Appellant was arrested, the officers found a screw driver, a pair of pliers, and a box cutter in his pocket. Appellant objected to their admission on the basis there was no evidence of forced entry in this case; that they were commonly used tools and not burglar tools; and had no relevance to the issues to be resolved by the jury. The trial court admitted the tools into evidence.

The tools were admissible as "same transaction contextual evidence," a type of background evidence, since they were found on Appellant incident to his arrest, shortly after commission of the offense. Mayes v. State, 816 S.W.2d 79, 84-87 (Tex. Crim. App. 1990). Moreover, the tools were relevant. It is beside the point that Appellant did not actually use the tools to enter the building, or that he found it unnecessary to use them because he found it unlocked. The tools could be used in burglarizing a building and Appellant was carrying them in his pocket when he was apprehended near the scene of the offense. The trial court acted within its discretion in determining that the evidence was relevant. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

Point two is overruled.

Point three: "The trial court erred in permitting the prosecutor to argue to the jury that items found on Appellant at the time of his arrest were burglar tools, an argument which was not supported in the appellate record and which invited the jury to convict Appellant on the basis of being a burglar in general."

The prosecutor argued to the jury:

These tools up here is just another piece of evidence that helps convict this man right here. Not by itself, not Bowen by himself, not Officer Akon by himself, not Kelly by himself, but everything.

That's the reason we brought you these four or five witnesses. Everything put together shows this man is guilty. And if Mr. Isenberg thinks it's not unusual to be walking around town with these things in his pocket, let me ask you this. Do any of you have any of those items in your pockets right now? If you do, raise your hand folks, and I'll sit down, right now. No, they're common burglar tools that either he did not have - -

MR. ISENBERG: Judge, I'm going to object to that. There's no testimony from even the police officers that they were anyway linked to the burglary, or common burglary tools or anything like that. We object to it.

THE COURT: He's entitled to argue what he thinks they are, for whatever it's worth. Overruled.

PROSECUTOR: These in and of itself aren't burglar tools. No, I'm not such a dumb butt to think that. But folks, when they're in your pocket at 1:30 in the morning, I bet they can be used for burglar tools.

Proper argument must fall within one of the following categories: (1) summary of the evidence; (2) reasonable deduction from the evidence; (3) response to argument of opposing counsel; (4) plea for law enforcement. Madden v. State, 721 S.W.2d 859, 862 (Tex. Crim. App. 1986).

The argument was reasonable deduction from the evidence. The prosecutor was entitled to draw an inference that Appellant was carrying the tools to aid in the commission of a burglary from the fact that he unlawfully entered the building and was apprehended near the building at 1:30 A.M. with tools in his pocket that might be used to commit a burglary.

Point three is overruled.

Point four: "The trial court erred in refusing to permit Appellant to impeach the State's primary witness with his personnel record."

Prior to trial Appellant subpoenaed the personnel records of Rocky Bowen, the security guard who saw Appellant taking the microwave oven from the building. Appellant told the court he desired to cross-examine Bowen with regard to two reprimands or incident reports dated March 8 and June 8, 1993, to show that Bowen is the kind of individual that is confrontational in nature, makes things up, has fights with people, and accuses people of things that they didn't do. The State objected and the court sustained the objection.

A witness's credibility may be impeached only with evidence of the witness's bad reputation for truth and veracity, prior convictions for felony or other crimes involving moral turpitude, or facts which would tend to establish ill feeling, bias, motive or animus of the witness against the accused. Hill v. State, 608 S.W.2d 932, 935 (Tex. Crim. App. 1980).

We have reviewed the personnel records and find no indication of any of the above contained therein. The trial court did not err in refusing to permit Appellant to attempt to impeach witness Bowen with his personnel record.

Point four is overruled.

Appellant has filed pro se briefs in addition to the brief filed by his counsel. While there is no right to hybrid representation, Bragg v. State, 635 S.W.2d 921, 922 (Tex. Crim. App. 1982); Miniel v. State, 831 S.W.2d 310, 313 n.1 (Tex. Crim. App. 1992), we nevertheless address the issues he raises.

Appellant argues the trial court erred in admitting the statement he made to the security guard because it stemmed from an illegal arrest as the guard was not an officer and not authorized to arrest him.

Tex. Code Crim. Proc. art. 14.01(a) provides: "A peace officer or any other person may, without a warrant, arrest an offender when the offense is committed in his presence or within his view if the offense is one classed as a felony or as against the public peace." Article 18.16 further provides that "all persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination or delivering the same to a peace officer for that purpose." Article 18.16 applies to a security guard. Simpson v. State, 815 S.W.2d 900, 901-902 (Tex. App. Fort Worth 1991). The arrest was legal. The trial court did not err by admitting the statement Appellant made to the security guard.

Appellant further argues he was denied effective assistance of counsel. Strickland v. Washington, S.Ct., 446 U.S. 668, and Hernandez v. State, 726 S.W.2d 53, 57, set the standards for analyzing a claim of ineffective assistance of counsel. Those cases require a showing that counsel's performance was deficient plus a showing that the deficiency so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. This is judged by the totality of counsel's representation and not by isolated acts and omissions. Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1980). The record in this case reflects that trial counsel afforded Appellant reasonably effective assistance by the above standards.

Appellant's pro se contentions are overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed May 10, 1995

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