Michael D. Lewis v. The State of Texas--Appeal from 265th District Court of Dallas County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00228-CR

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MICHAEL D. LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court

Dallas County, Texas

Trial Court No. F03-62977-R

Before Morriss, C.J., Carter and Cornelius,* JJ.

Opinion by Justice Cornelius

Concurring Opinion by Justice Carter

*William J. Cornelius, C.J., Retired, Sitting by Assignment

O P I N I O N

Michael D. Lewis was charged with aggravated robbery. He was tried by a jury, which convicted him of the lesser included offense of robbery. His punishment, enhanced by prior convictions, was set by the jury at thirty years' confinement.

Lewis does not challenge the sufficiency of the evidence. His only contention on appeal is that the trial court reversibly erred in sustaining the State's objection to a statement made by defense counsel at final argument. We overrule this contention and affirm the judgment.

Lewis was indicted for aggravated robbery by stealing a motor vehicle while using a deadly weapon, "to-wit: a knife and unknown object, the exact nature and description of which is unknown to the Grand Jurors, . . . ." At trial, the State produced the foreman of the grand jury, who testified that the grand jurors could not determine the nature of the weapon. The defense counsel cross-examined the foreman, and questioned him as follows:

QBut how many people are on a Grand Jury?

AThere are twelve standing jurors, and I believe two alternates.

QOkay. And isn't it true that the primary purpose of the Grand Jury is just to determine whether or not there is probable cause to hold the defendant over for trial?

A Yes.

QAnd probable cause can be just the complaining witness saying that it happened and you believe him?

A Correct.

. . . .

QAnd you make or you and the Grand Jury make your determination based on the testimony. It can be just one witness; is that correct?

A That's correct.

QAnd in this case the only witness that testified at the Grand Jury was a police officer?

A That's correct.

QAnd in fact Mr. Pleasant did not come and testify for himself, did he?

A Did not.

Later, at final argument, defense counsel made the following statement:

Now, let's look at David Dial who came in here who was foreman of the grand jury. I submit to you it's not very often that the foreman of the grand jury comes in to testify. But he testified that they could not determine -- that they determined the weapon was unknown. And he also testified because the grand jury is very important to the victims. That's when they come to get to testify so that this person will have to go to trial. Mr. Pleasant didn't even show up to the grand jury.

[Prosecutor]: Judge, I'm going to object to that as improper. I'm going to object to that as improper argument. It's outside the testimony.

THE COURT: Sustain the objection.

[Prosecutor]: Ask the jury be instructed to disregard that.

THE COURT: The jury will disregard the last comment.

Lewis argues that the trial court's action in sustaining the State's objection in this instance was harmful error because (1) it constituted a violation of his Sixth Amendment right to effective counsel, (2) it was a strike at him over the shoulders of his counsel, (3) it was an improper comment on the evidence by the trial court, and (4) it improperly restricted his counsel's valid argument to the jury. We reject this contention.

Lewis construes the trial court's action as a ruling that defense counsel's statement that Charles Pleasant failed to testify before the grand jury was improper. He posits that, since testimony to that effect had already been given and received in evidence earlier in the trial without objection, it was a part of the evidence and his counsel had a right to discuss it in argument.

Considering the entire context of the cross-examination, the argument, and the objection, we hold that the trial court's ruling may be upheld on the ground that the court was preventing defense counsel from embarking on a discussion dealing with what transpired before the grand jury. It seems that defense counsel's intent was to raise the inference that the complainant really did not want to press charges against Lewis, and was reluctant to testify before the grand jury for that or some other reason. Such a tack by defense counsel was coming dangerously close to revealing the proceedings of the grand jury, particularly the quantity and quality of the testimony before it, and the trial court was within its discretion in taking a pre-emptive step to prevent compromising the grand jury proceedings. In this we believe the trial court was acting within its broad discretion and did not abuse that discretion.

It is true that the trial court had previously allowed the foreman of the grand jury to testify that Pleasant did not appear and that only one witness, a police officer, did testify before the grand jury. But there was no objection to that testimony, and defense counsel did not pursue the matter any further until argument. It seems the trial court was more wary when defense counsel began arguing to the trial jury about the purpose and extent of the grand jury proceedings, and took this action to prevent any further exploration of the grand jury proceedings.

The trial court has broad discretion, and indeed is required, to take all necessary steps to ensure that the proceedings before the grand jury remain secret, except in those specific instances where the law permits or requires that they be revealed. Tex. Code Crim. Proc. Ann. art. 20.02 (Vernon Supp. 2004); McManus v. State, 591 S.W.2d 505 (Tex. Crim. App. 1979), overruled on other grounds, Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988); Legate v. State, 52 S.W.3d 797, 803 04 (Tex. App. San Antonio 2001, pet. ref'd); Stern v. State ex rel. Ansel, 869 S.W.2d 614, 628 29 (Tex. App. Houston [14th Dist.] 1994, pet. denied).

The trial court's ruling did not deprive Lewis of effective representation of counsel. His counsel made a thorough and able argument covering every aspect of the State's case and the defense, except as to what transpired before the grand jury. She was not entitled to discuss that.

The trial court's action did not amount to striking at Lewis over his counsel's shoulders. The court's ruling on the propriety or admissibility of evidence or argument does not constitute a personal attack on Lewis or his counsel unless it is accompanied by some hint of impropriety or personal condemnation. There was none of that here.

And the trial court's action was not an improper comment on the weight of the evidence. To constitute such a prohibited comment, the court's action must give the jury the impression that the court has an opinion about the case or believes some particular evidence is true or untrue. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). If a mere ruling on an objection to evidence or argument without any further comment by the trial court constitutes an improper comment on the evidence, the trial court could not rule on any of the issues arising during the trial. See Smith v. State, 595 S.W.2d 120 (Tex. Crim. App. [Panel Op.] 1980).

We also reject the contention that the trial court's action improperly restricted defense counsel's argument. The trial court has the duty to sustain objections to argument when the argument violates some rule or statute. Bray v. State, 478 S.W.2d 89 (Tex. Crim. App. 1972); Eckert v. State, 672 S.W.2d 600 (Tex. App. Austin 1984, pet. ref'd). Such rulings do not improperly restrict the right of argument. An attorney has no right to engage in improper argument.

If it can be considered that the trial court's action in this matter was error, we conclude it was harmless beyond a reasonable doubt. By either the constitutional standard or the traditional standard of harm analysis, the trial court's action neither violated any of Lewis' substantial rights, nor in any way contributed to the conviction or the punishment. Tex. R. App.P. 44.2(a), (b).

The complainant, Pleasant, testified extensively and unequivocally that Lewis approached him in his automobile outside a convenience store, engaged him in conversation, put something "cold" to his throat, said he had a gun, and took Pleasant's vehicle. Later that night, police saw Lewis driving the vehicle and turned around to follow him. Lewis left the vehicle and fled on foot, but was apprehended shortly thereafter. Police found two items of Pleasant's property, which had been in Pleasant's vehicle, on Lewis when he was apprehended. Lewis testified and said another man had taken Pleasant's vehicle and later gave him the keys so he could drive it. Lewis voluntarily admitted to the jury that he had been convicted previously of six felonies and had been in the penitentiary several times for burglary and other offenses. He also admitted that he was a parole violator when he was apprehended for this offense. Despite this evidence, the jury set Lewis' punishment at only thirty years' confinement, near the minimum for the offense, which could have justified a life sentence. Considering all of this evidence, we conclude beyond a reasonable doubt that the trial court's action in this regard made no contribution to Lewis' conviction or punishment, and it did not deprive Lewis of any substantial right.

For all the stated reasons, we affirm the trial court's judgment.

William J. Cornelius*

Justice

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

CONCURRING OPINION

Since the grand jury foreman stated that Mr. Pleasant did not appear before the grand jury, I believe defense counsel should have been allowed to argue that to the jury. Consequently, it is my view that the trial court erred in sustaining the State's objection to the argument. I agree, for all the reasons set out in the majority opinion, that such error was harmless.

Jack Carter

Justice

Date Submitted: March 17, 2004

Date Decided: July 7, 2004

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