DAVID LEE WEBSTER,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00322-CR
DAVID LEE WEBSTER,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH, AND JUSTICES WHITHAM, AND BURNETT
OPINION BY JUSTICE BURNETT
APRIL 27, 1989
        A jury found appellant, David Lee Webster, guilty of murder and sentenced him to twenty-five years confinement and assessed a $5,000 fine. Appellant raises four points of error: The trial court erred in (1) admitting evidence of the prior relationship of appellant and his girlfriend; (2) denying appellant's motion for mistrial following the State's improper comment on appellant's postarrest silence; (3) overruling appellant's objection to State's exhibit two; and (4) failing to require the State to fully open its final argument during the guilt/innocence phase of the trial before appellant's summation. We affirm the judgment of the trial court.
        Appellant and his girlfriend (Verta) lived together, but after discord in their relationship developed, Verta moved out of appellant's apartment. After an incident at a dragstrip involving appellant, Verta, and another male, Verta sought to obtain a peace bond against appellant. Around 1:00 a.m. on August 2, 1987, appellant went to an apartment complex in order to speak to Verta about the peace bond. A fifteen-year-old girl (LaTanya) saw appellant outside the apartments and went to speak with him. Appellant told LaTanya, "Go upstairs and knock on the door, or else I'll kill the next m f to come downstairs." LaTanya went upstairs and told Verta's sister what had happened. After relaying the message, LaTanya heard several gunshots and saw the decedent running along the balcony. The decedent was bleeding.
        At the time of the shooting, Verta and her male companion (Walter), were on a balcony overlooking a parking lot. Several witnesses saw appellant in a field near the parking lot. One of Verta's sisters saw the decedent running through the field just before the shooting and in the parking lot at the time the shooting started. As stated earlier, LaTanya saw the decedent, after she heard gunshots, running along the balcony, and the decedent was bleeding. Both appellant and Verta testified that they did not see the decedent. Walter said that the decedent was not on the balcony at the time of the shooting.
        Regarding the shooting, appellant testified as follows:
 
 
        [The Prosecutor]: Tell these people over there what you saw when you were looking through that scope?
 
        [Appellant]: I saw Verta.
 
        [The Prosecutor]: Did you see her back?
 
        [Appellant]: No, at first I saw her face.
 
        [The Prosecutor]: Put the scope on her face. Then, where did it go?
 
        [Appellant]: I let it fall down and I pulled the trigger.
 
        [The Prosecutor]: So, she's the first one you shot out there?
 
        [Appellant]: Yes.
 
        [The Prosecutor]: Then, where did the scope go?
 
        [Appellant]: I shot at Walter.
 
        [The Prosecutor]: Where was Walter?
 
        [Appellant]: He was standing right there by Verta.
 
        [The Prosecutor]: Why did you shoot at that boy running through the parking lot?
 
        [Appellant]: I never saw anybody running through the parking lot.
 
        [The Prosecutor]: You didn't see him coming down the trail and maybe he saw you and that caused you some concern at that time?
 
        [Appellant]: No, I didn't - I didn't see anyone. I shot those two shots and somebody started shooting back. I just pointed the gun and shot three more shots and ran.
        Two security guards at the apartment complex testified that they returned fire. One security guard testified that he was on the second floor when the shooting started. He said that he heard eight to ten shots initially and that he returned four shots. He then went to the first level and heard approximately four more shots coming from a different location in the field. He fired six more shots in the direction of the flashes. He was not aware that anyone other than Verta had been shot.
        A second security guard said that he was on the first level when he heard gunfire. He saw a body lying underneath a stairwell. The second security guard fired one shot in the direction of the field.
        The police arrested appellant several days after the shooting when appellant attempted to visit Verta in the hospital. Appellant testified that he was not aware that anyone had been killed until after the police arrested him.
        In point of error one, appellant contends that the trial court erred in admitting evidence of the prior relationship between appellant and Verta. The complained-of evidence regarded appellant's violent temperament: for example, appellant hit Verta; appellant slashed the tires of the car of Verta's sister; appellant kicked in the door of Verta's apartment; appellant threatened Verta and fired a gun into the air; and appellant abducted Verta at a dragstrip.
        Both the abstract and application portion of the charge to the jury on guilt or innocence instructed the jury on the law of transferred intent. The charge alleged that appellant intended to shoot Verta and/or Walter but missed and killed the decedent. Previous difficulties between a defendant and a third party may be proved if they led up to the charged offense, involved the victim in any way, or intended to reveal the defendant's motive or state of mind. Ingham v. State, 679 S.W.2d 503, 506 (Tex. Crim. App. 1984). Because the evidence showed that appellant attempted to shoot Verta and Walter and that appellant was not even aware that he had killed anyone until after the police arrested him, the previous difficulties between appellant and Verta were admissible to prove appellant's motive or state of mind.
        However, appellant contends that during jury arguments the State changed its theory of the case and argued that appellant shot the decedent knowingly. Appellant contends that under this theory the extraneous transactions between appellant and Verta were inadmissible, prejudicial, and highly harmful. We disagree with appellant's argument. In order to address appellant's argument, we quote a portion of the State's jury argument and underscore the portions that appellant argues illustrate the State's change in theory:
 
 
        [The Prosecutor]: Remember what [La]Tanya told you: That 15-year-old girl, that had no reason to come down here and say one thing about [appellant] or anybody else. She told you she saw [appellant] just minutes before. And [appellant] said, "You go up there and knock on the door." And she kind of hesitated. "Go knock on the door and tell them I'm going to shoot the next MF that goes up those stairs."
 
        [Defense Counsel]: Your Honor, we're going to object to that as being a misstatement of the evidence.
 
        THE COURT: Province of the jury to recall the testimony as they heard it.
 
        [The Prosecutor]: You recall the testimony as to what [La]Tanya said. [The decedent], it's a reasonable deduction from the evidence, as he was running back through the parking lot, as another witness told you, he stumbled. I'll suggest to you it's a reasonable deduction from the evidence that that's when [appellant], of course, he didn't know the ex-marine -- what kind of ammunition he had in that gun. He used up $40.00 two days before and never checked it, never concerned himself as to whether or not it was an operating weapon or not. But I'll submit to you as [the decedent] ran through that parking lot and stumbled, that's when that .22 hollow point ripped into his lungs and his aorta, and he started to fill up with blood, and started to choke on his own blood. And, as the doctor told you, Dr. Petty told you, it's entirely consistent and possible with the type of wound that he saw on [the decedent], that a man could run for 20 or 30 seconds. And we know that [the decedent] was running upstairs. [La]Tanya saw him. And the blood was up there. Somehow he made it upstairs, and ran around and came back down another stairwell and collapsed and died. See, I make my remarks to you on behalf of [the decedent] because you look at those pictures of that young boy, and you know what he tried to do that night when he was struck by that bullet. He was making a final argument to everybody that he wanted to live. As he was running, he was trying to run off that pain, and he probably knew that he was hurt bad. But he didn't know quite how bad until he went down that final stairwell. The boy wanted to live. He wanted to lead his life. And the difference, thank God, between who [the decedent] had to make his final argument to back on August the 2nd, and who I make my final argument to today, is a little bit different, isn't it? He's making his final argument to a man like [appellant], and here's his tools, and you understand how far that argument got [the decedent]. I make my final argument to 12 reasonable people that have heard the evidence, and like [defense counsel] asked you, will have the courage and the conviction to base your verdict on that evidence. You remember when we talked in voir dire last Tuesday about what the State would have to prove in this case. We talked about how we would have to prove [appellant's] intent. We talked about transferred intent. I'm not going to go over that. . . .
(Emphasis added.)
        Appellant suggests that the State argued that appellant knowingly shot the decedent because the decedent was moving near the stairs. We disagree; the State was merely summarizing the evidence. Nothing in the State's argument buttresses the inference that the State was arguing that appellant knowingly shot the decedent because the decedent was near the stairs.
        Appellant also suggests that the State argued that appellant purposefully shot the decedent in the parking lot. We disagree; the State merely speculated that the decedent was hit while in the parking lot, not that appellant knowingly shot the decedent in the parking lot.
        We hold that the State's theory of the case was transferred intent and that the State never varied from that theory; therefore, the previous difficulties between appellant and Verta were properly admitted. Appellant's first point of error is overruled.
        In point of error two, appellant argues that the trial court erred in denying his motion for mistrial following the State's improper comment on appellant's postarrest silence. On redirect examination of a police investigator by the State, the following occurred:
 
 
        [The Prosecutor]: Without going into what [appellant] said or anything that he might have said down there, would you describe him -- at that time shortly after his arrest, would you describe him as being remorseful?
 
        [Witness]: No, not at all.
 
        [Defense Counsel]: I apologize, to which we're going to object, Your Honor, with regard to the manner in which the question was framed, it's a violation of the United States versus Del Salvo, versus Ohio.
 
        THE COURT: Sustained.
 
        [Defense Counsel]: And no proper predicate and ask the jury be instructed to disregard not only the question, but any answer they may have heard.
 
        THE COURT: The jury will disregard the question by [the prosecutor] and the response by [the witness] and consider neither for any purpose.
 
        [Defense Counsel]: Respectfully move for a mistrial.
 
        THE COURT: Denied.
        Courts presume that an instruction to disregard is efficacious. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). The court sustained the objection and instructed the jury to disregard both the question and the answer. The prosecutor dropped that line of questioning immediately. The record does not suggest a flagrant violation. Furthermore, appellant testified that he was sorry for what had occurred on August 2, 1987. Nothing in the record suggests the impossibility of withdrawing the impression produced on the minds of the jury. Id. Appellant's second point of error is overruled.
        In point of error three, appellant argues that the trial court erred in failing to expunge a portion of a letter from appellant to Verta. The complained-of language in the letter states: "I am going to try and get you back . . . ." Appellant contends that the jury could have construed this language as a threat of retaliation. Appellant admits that the complained-of language would have to be read out of context to convey an inference of retaliation.
        Rule 107 of the Texas Rules of Criminal Evidence provides that when a part of a writing is given in evidence, counsel may inquire into any other part of the writing on the same subject. When the complained-of language is read in the context of the rest of the letter, appellant's intent clearly appears to be to renew his relationship with Verta and not to attack her. The trial court committed no error; appellant's third point of error is overruled.
        In point of error four, appellant contends that the trial court erred in failing to require the State to fully open its final argument in the guilt/innocence portion of the trial. Texas courts have consistently held that the trial court does not err by allowing the State to waive opening argument; the only mandatory provision in the Texas Code of Criminal Procedure regarding jury arguments addresses the State's right to close arguments. Granato v. State, 493 S.W.2d 822, 826 (Tex. Crim. App.), cert denied, 414 U.S. 1009 (1973); TEX. CRIM. PROC. CODE ANN. art. 36.07 (Vernon 1981). Appellant's fourth point of error is overruled.
        The judgment of the trial court is affirmed.
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00322.F
 
 
File Date[01-02-89]
File Name[880322]