J.C. EDWARDS, FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00199-CR
 
J.C. EDWARDS,                                        FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS,
 
 
        APPELLEE.                                         OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, KINKEADE AND OVARD
OPINION BY JUSTICE KINKEADE
FEBRUARY 17, 1989
        In a jury trial, J.C. Edwards was convicted of murder. The jury assessed punishment at twenty five years imprisonment. Edwards complains that the trial court erred in 1) overruling an objection to the prosecutor's improper jury argument; 2) making a deadly weapon finding; and 3) overruling an objection to improper questioning of a witness. We find no error and, accordingly, affirm the trial court's judgment.
        Katherine Henderson testified at trial that she had dated Edwards for several years, but had broken off their relationship. The day after their breakup, she was riding in a truck with the deceased, Charles Johnson. Johnson and Henderson had pulled up to Bexar Lake when Edwards drove in behind them and blocked their truck. Edwards called to Henderson to come into his truck. When she refused, he went over to the open passenger window of Johnson's truck where Henderson was sitting. Edwards struck Henderson three times with his hands. Then Johnson got out of his truck, saying to Edwards that he "just hated to see a man jump on a woman." When Johnson approached Edwards, Edwards hit Johnson with his fist. Johnson hit Edwards back, and Edwards stabbed Johnson twice with a pocket knife. Johnson died of the stab wounds.
        Edwards contends that the trial court erroneously overruled his objection to improper jury argument during the guilt/innocence phase of the trial. Proper jury argument may encompass only 1) summation of the evidence, 2) reasonable deductions from the evidence, 3) answers to arguments of opposing counsel and 4) pleas for law enforcement. Franklin v. State, 693 S.W.2d 420, 429 (Tex. Crim. App. 1985). In his argument, counsel may draw all reasonable, fair and legitimate inferences from the evidence and will be afforded unlimited lattitude in this respect as long as the evidence supports his argument and he offers it in good faith. Griffin v. State, 554 S.W.2d 688, 690 (Tex. Crim. App. 1977).
        Edwards complains of following portion of the prosecutor's jury argument:
        The State: And let me say this right now. See, Mr. Gaines tried to throw some of the blame on Ms. Henderson by saying she is a culprit, too, and yesterday, whenever we had the doctor on the stand, he tried to insinuate that the deceased was some kind of a crazed drug user.
 
        The Defense: I object what he says I tried to insinuate. I didn't try to insinuate a thing. Improper argument.
 
        The Court: Overruled.
The prosecutor's reference to opposing counsel's effort to throw the blame on Henderson was clearly a response to the defense counsel's argument in which he characterized Henderson as a culprit. This statement clearly falls within the limits of proper jury argument. The question of the propriety of the prosecutor's argument that Edwards's counsel insinuated that Johnson, the deceased, was a "crazed drug user" merits further consideration.
        Dr. Weiner, the medical examiner, testified at trial that the autopsy revealed small amounts of diazepam and morphine in Johnson's body. On cross examination, he stated that it was possible that Johnson could have ingested a significant amount of these drugs, which may have dissipated before the autopsy through blood loss. Although no alcohol was found in Johnson's blood, he noted that it could also have dissipated if Johnson had consumed alcohol. Edwards's counsel questioned Weiner further about the possibility that a combination of the drugs and alcohol could cause a "mental" reaction, and also whether such a combination could cause a person to act unreasonably. Edwards's counsel also argued before the jury that it was possible for Johnson to have had a sufficient quantity of drugs in his body as to cause an unreasonable reaction. He went on the state that any reasonable man would have avoided the situation with Edwards.
        We hold that the prosecutor's statement that Edwards's counsel was insinuating that Johnson was a "crazed drug user" constituted proper jury argument. The defense counsel's questions to Weiner and his subsequent jury argument did insinuate that the drugs in Johnson's body may have caused an unreasonable, or crazed, reaction. The prosecutor's argument was, therefore, both a summary of the evidence adduced at trial and a response to opposing counsel's argument. We overrule the first point of error.
        Edwards contends that the trial court erroneously made an affirmative finding that Edwards used or exhibited a deadly weapon during the commission of the offense. He claims that the deadly weapon finding was not part of the jury's verdict and that, in a jury trial, the court has no authority to make such a finding. Edwards maintains that because weapon alleged in the indictment, a knife, is not a deadly weapon per se, the court could not enter an order that the jury had made an affirmative finding of a deadly weapon by finding Edwards guilty "as charged in the indictment."
        The indictment stated that Edwards did " . . . then and there knowingly and intentionally cause the death of Charles Johnson, an individual, by stabbing said Charles Johnson with a knife, a deadly weapon. . ." The jury verdict provided: "We, the jury, find the defendant guilty of the offense of murder as charged in the indictment." The Texas Court of Criminal Appeals has stated that a trial court may properly find that a jury has made an affirmative finding
            ... when the indictment by allegation specifically places the issue before the trier of fact (i.e. ". . . by stabbing him with a knife, a deadly weapon . . .") and the defendant is found guilty "as charged in the indictment."
Gutierrez guaranty of collection and guaranty of payment. Wolfe v. Schuster, 591 S.W.2d 926, 930 (Tex. Civ. App.--Dallas 1979, no writ). Courts regard a guaranty of collection as an undertaking of the guarantor to pay if the debt cannot be collected by the use of reasonable diligence. Id. The principal debtor must be joined unless excused pursuant to section 17.001. See id. at 932. On the other hand, a guaranty of payment is an obligation to pay the debt when due if the debtor does not. Id. at 930. A guarantor of payment is primarily liable and waives any requirement that the holder of the note take action against the maker as a condition precedent to his liability on the guaranty. Hopkins v. First Nat'l Bank at Brownsville, 551 S.W.2d 343, 345 (Tex. 1977) (per curiam). The lender may bring an action against the guarantor of payment without joining the principal debtor. Ferguson v. McCarrell, 582 S.W.2d 539, 541-42 (Tex. Civ. App.--Austin), writ ref'd n.r.e., 588 S.W.2d 895 (Tex. 1979) (per curiam); TEX. BUS. & COM. CODE ANN. § 3.416(a) (Tex. UCC) (Vernon 1968) (hereinafter cited as "TEX. UCC").
        The next issue is whether Ford was a guarantor of payment or a guarantor of collection. The parties' agreement, drafted by Ford, does not specify which type of guarantor Ford agreed to be. In Texas, courts generally construe a writing most strictly against its author. Temple-Eastex, Inc. v. Addison Bank, 672 S.W.2d 793, 798 (Tex. 1984). Accordingly, because Ford listed himself as a . P. 90.
 
88-00199.F
 
 
File Date[01-02-89]
File Name[880199]