Early Garner v. The State of Texas--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-91-081-CR

No. 10-91-082-CR

No. 10-91-083-CR

EARLY GARNER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court Nos. 14,544, 14,545 & 14,559

O P I N I O N

Early Garner appeals his conviction in three separate causes that were joined for a jury trial. In cause no. 14,544, Evans was found guilty of aggravated assault on a peace officer; in cause no. 14,545, he was found guilty of aggravated assault on a peace officer; and in cause no. 14,559, he was found guilty of aggravated assault with a deadly weapon. He contends on appeal that the trial court erred in denying his motion for a change of venue, in allowing the State to ask a hypothetical question during voir dire examination based on the facts of the case, and in overruling his objection to the State's jury argument.

In point one, Evans contends that the court erred in denying his motion for change of venue because the State's controverting affidavit was filed less than seven days before the pretrial hearing. If a motion for change of venue is proper on its face, the defendant is entitled to a change of venue as a matter of law, unless the state properly challenges the defendant's motion. Lundstrom v. State, 742 S.W.2d 279, 281 (Tex. Crim. App. 1986). Evans argues that because the State's controverting affidavit was filed on the morning of the pretrial hearing, the State failed to properly challenge his motion.

According to article 28.01, section 2, of the Texas Code of Criminal Procedure, "When a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown . . . ." Tex. Code Crim. Proc. Ann. art. 28.01, 2 (Vernon 1989) (emphasis added). "Motions for change of venue by the State or the defendant" are among the list of "such preliminary matters" that may be determined at a pretrial hearing authorized by article 28.01, section 1, of the Texas Code of Criminal Procedure. See id. 1. Garner's motion for change of venue was filed more than five months before the pretrial hearing. Therefore, the preliminary matter of venue was properly "raised or filed seven days before the hearing." See id. 2.

The State's controverting affidavit does not constitute an independent preliminary matter that must be "raised or filed seven days before the hearing." See id. 1. Instead, its purpose is to establish that there is a factual dispute requiring the court's resolution. See Cockrum v. State, 758 S.W.2d 577, 583 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1072, 109 S. Ct. 1358 (1989). Because the State's properly filed controverting affidavit created a factual dispute, Garner was not entitled to a change of venue as a matter of law. Point of error one is overruled.

In point two, Garner contends that the court erred in allowing the State to ask a hypothetical question during voir dire examination based on the facts of the case. The prosecutor asked the following question of a juror during voir dire examination:

[Prosecutor]: Mrs. Minnitt, if you found Early Garner guilty of aggravated assault, could you assess the maximum punishment of ten years in the penitentiary?

[Garner's Attorney]: Your Honor, I believe he needs to preface that in a proper case, not in this specific case.

[Prosecutor]: Judge, I believe she's got to be able to follow the law in this case. If she found Early Garner guilty beyond a reasonable doubt, could she consider assessing the maximum punishment, and not whether she would, but whether she could consider it.

THE COURT: You may proceed.

[Prosecutor]: Mrs. Minnitt, I don't want to mislead you. I'm not going to ask you what you're going to do in this case, because right now is not the proper time for that. The proper time to do that is after a person is found guilty at the punishment and have evidence if there is some, but there is some people who say they can't find a person guilty and assess a person that much punishment or that little punishment for an aggravated assault. Could you assess ten years for an aggravated assault?

We hold that Garner's complaint was waived for appellate review because he failed to object and obtain a ruling. See Baize v. State, 790 S.W.2d 63, 65 (Tex. App. Houston [1st Dist.] 1990, pet. ref'd); Klein v. State, 662 S.W.2d 166, 169 (Tex. App. Corpus Christi 1983, no pet.); Tex. R. App. P. 52(a). Even if Garner had preserved the complaint for review, the question posed to the prospective juror was hardly improper. Bias against any of the law upon which the state is to rely is grounds for a challenge for cause and is a proper matter for inquiry. See Henry v. State, 800 S.W.2d 612, 616 (Tex. App. Houston [14th Dist.] 1990, no pet.). We find that the hypothetical question was not made in an attempt to commit the prospective juror to the facts of the case, for indeed no facts were mentioned. Instead, the question was posed to explain principles of law relevant to the appropriate range of punishment for aggravated assault. See id. Point of error two is overruled.

In point three, Garner contends that the court erred in overruling his objection to the State's improper jury argument. The prosecutor began his final argument at the guilt-innocence phase of the trial with the following comments:

[Prosecutor]: I find it very difficult to broach what I'm about to say, because I'm offended. I'm offended by Mr. Banks' interpretation of the evidence when it accuses these two men [arresting officers] of doing something wrong. If you believe that those two men did something wrong in putting Early Garner in that cell, you find him not guilty and turn him loose, because it offends me greatly for this man, when there is no bit of evidence whatsoever to support what he says, that they are trying to beat up on Early Garner, thump some rump, whatever he wants to

[Garner's Attorney]: Your Honor, I'm going to object to Mr. McCullough trying to strike at my client over my head and shoulders using personal comments.

COURT: Overruled.

[Prosecutor]: My attack is not at all against Mr. Banks, because he is trying to get the job done that he is assigned in representing Early Garner. It's a task that he takes seriously I'm sure, but there's not a bit of evidence to support his thump some rump theory, folks.

Proper jury argument falls within one of the following categories: (1) a summation of the evidence, (2) a reasonable deduction from the evidence, (3) an answer to argument of opposing counsel, and (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). The courts have shown a special concern for final arguments that constitute uninvited and unsubstantiated accusations of improper conduct directed at a defendant's attorney. Gomez v. State, 704 S.W.2d 770, 771 (Tex. Crim. App. 1985). In Gomez, the court held that the prosecutor's argument accusing the defense attorney of bringing witnesses into court "to manufacture evidence" was uninvited, not supported by any evidence, and clearly improper. Id. at 772. However, the prosecutor in this case never accused Garner's attorney of improper conduct. The prosecutor stated only that he was "offended" by his opponent's interpretation of the evidence. This argument did not strike at Garner over the shoulders of counsel. Instead, the prosecutor was responding to the opponent's argument that the arresting officers "were over there to thump some rump." Thus, the argument was proper, and no error occurred when the court overruled the objection. Point of error three is overruled.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 15, 1992

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