Artee Harris III v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-95-007-CR

ARTEE HARRIS III,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 94-417-C

O P I N I O N

Appellant Harris appeals from his conviction for murder, for which he was sentenced to life in the Texas Department of Criminal Justice plus a $10,000 fine.

Appellant Harris, the deceased Malcolm Estelle, Kevin Willis, and Wallace Rose were at the Change of Pace Club in East Waco at l:30 a.m. on March 20, 1994. Appellant, Willis, Rose, and Estelle went outside the club where Appellant, Willis, and Rose fought with Estelle and had him down on the ground. Willis went to his car and got his Tech 9-M automatic pistol and was returning when he dropped the pistol. Appellant picked up the pistol and returned to the scene. Estelle was standing up; Appellant shot him and Estelle fell to the ground. Appellant, standing over Estelle, shot him three more times. Four witnesses testified they saw Appellant shoot Estelle, and Appellant told two other witnesses, after the shooting, that he had killed Estelle. Appellant was indicted for, and convicted of, the murder of Estelle and was sentenced to life in prison plus a fine.

Appellant appeals on two points of error.

Point one: "Prosecution's argument during the punishment phase of Appellant's trial appealed to the sentiments of the community and resulted in reversible error." Specifically, Appellant complains of the following argument to the jury by the prosecutor:

We are here about a brutal murder, let's keep our focus of attention on what we are here for. You carried the baton yesterday when you came back with the right verdict. You are half way through the race, the half means nothing when you don't carry through to the finish.

Appellant contends the argument was an improper plea for law enforcement and urged the jury to return a life sentence based on the expectations of the community, the District Attorney's Office, the Waco Police Department, and the State of Texas by requesting the jury to "carry the baton."

To preserve error committed during jury argument, the defendant must object and receive an adverse ruling. Harris v. State, 784 S.W.2d 5, 12 (Tex. Crim. App. 1989). Appellant did not object and has preserved nothing for review. An exception to this rule exists when the argument is so prejudicial that an instruction to disregard could not cure the harm. Moltey v. State, 773 S.W.2d 283, 293 (Tex. Crim. App. 1989).

Appellant's argument does not fall in that category. Moreover, Appellant's assertion that the argument "was an improper plea for law enforcement based on the expectations of the community, the District Attorney's Office, the Waco Police Department, and the Texas of Texas" is without support in the record and is a mere conjecture on behalf of the Appellant. A review of the State's entire closing argument in the punishment phase reveals the State did not once specifically refer to or imply that the District Attorney's Office, The Waco Police Department, or the State of Texas demanded or expected any specific punishment. Rather, the State argued: "Punishment means nothing if it isn't certain. Make it just, make it proper."

The State's argument was not improper. Point one is overruled.

Point two: "The prosecution committed reversible error by striking out at the Appellant over the shoulders of his defense counsel during argument to the jury."

Gretta Johnson, a State's witness, testified that Appellant told her he had killed the deceased. Appellant's witness, Kathy Lewis, testified that Gretta had told her that Appellant did not do it, and Lewis further testified that Appellant's attorney represented her in a pending matter; that she had tried to get Appellant's attorney represent her boyfriend on a pending murder charge but that he had refused, but that she still "wished" he would represent her boyfriend. She further testified she could not remember Gretta's last name although she had known her for five or six years.

The prosecutor during jury argument on guilt-innocence stated that Kathy Lewis was lying; that she was trying to get Appellant's attorney to represent her boyfriend in a murder case; that she is trying to give him something and she gave him a big lie.

Appellant did not object to the argument and no error was preserved for review. Harris v. State, supra. Moreover, the argument was a reasonable inference based on facts in evidence. Point two is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed December 6, 1995

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