Joe Coy Ellis v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-92-263-CR

JOE COY ELLIS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 23,000

O P I N I O N

Joe Coy Ellis appeals his conviction for murder. Ellis was found guilty by a jury, and the jury assessed punishment at life in prison and a $10,000 fine.

In point one Ellis contends that the court erred in admitting the autopsy report into evidence because it was not properly authenticated. The State offered the autopsy report of the victim pursuant to Rule 902(10)(a) of the Texas Rules of Criminal Evidence. // Ellis, however, objected that the State had not satisfied the notice requirement of Rule 902(10)(a) because it had not provided notice pursuant to Rule 21a of the Texas Rules of Civil Procedure. // The State responded that the autopsy report had been on file for more than fourteen days and that the defense counsel had been aware of the document for more than fourteen days. The court overruled Ellis' objection and admitted the autopsy report. Ellis does not argue that the autopsy report was not "filed with the clerk of the court . . . at least fourteen days prior to . . . trial" or that he was not "given prompt notice" by the State. // Instead, Ellis relies upon the last sentence of Rule 902(10)(a): "Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule 21a, Texas Rules of Civil Procedure, fourteen days prior to commencement of trial in said cause." (Emphasis added). Such a provision does not require notice to be given pursuant to Rule 21a, but merely provides a definite means of satisfying the "prompt notice" requirement. Because Ellis only objected that the requirements of Rule 21a had not been satisfied, and the record does not reflect that the State failed to give prompt notice in some other manner, we overrule point of error one.

In point two Ellis contends that the court erred in overruling his motion for mistrial when he discovered that one of the jurors failed to disclose during voir dire that he knew a key prosecution witness and her family. When a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hindering their selection of an impartial and disinterested jury. // When a partial, biased, or prejudiced juror is selected without fault or lack of diligence on the part of defense counsel, who has acted in good faith upon the answers given to him on voir dire examination, unaware that they are inaccurate, good ground exists for a new trial. // In this case, however, no information was withheld by the juror. During the State's voir dire examination, the prosecutor asked the venire if anybody knew Wanda Richards. No one responded to the prosecutor's question. Defense counsel followed-up only by asking an individual veniremember whether he knew Wanda Richards. Neither attorney identified the witness as Wanda Fowler, her maiden name, or as Wanda Donoho, her name by a previous marriage.

After the jury was sworn and the indictment read, but before opening statements, defense counsel examined the juror as follows:

Q. You did not advise the lawyers that you knew a Wanda Richards because you didn't realize until this morning that her name wasn't Richard any more or it wasn't you didn't recognize her under the name of Richards.

A. Right.

Q. Because the way you knew her was when her name was Fowler. Her married name was Fowler?

A.No. She was Fowler before she married. Then she married my cousin and it made her Donoho. And that's if [sic] only two names I have ever know her by.

Q. All right. And how much contact have you had with Wanda Fowler Donoho Richards since?

A. In the since in the last I was a pallbearer at her dad's funeral, I don't know, about 15 years ago, and just see her at a gas station or something like that maybe twice.

. . . .

Q. I asked you if it would have any effect on your sitting as a juror in this case, and your answer was "no"?

A. I don't believe it would. I don't know anything about the trial. I don't know I don't know why it would. If they get up there and tell what they are supposed to do.

Defense counsel then objected that the juror was disqualified and requested a mistrial because the juror failed to reveal his familiarity with the witness. In denying Ellis' motion for mistrial, the court noted on the record that the witness was not in the courtroom during the voir dire examination. The trial court is the trier of fact at the hearing on a motion for mistrial and the court's findings will not be disturbed absent an abuse of discretion. // Because the record does not reflect that the juror withheld any information when the prosecutor asked whether anyone knew Wanda Richards, and because the defense attorney did not diligently pursue his concern that members of the venire might know a State's witness by a different name, we overrule point of error two.

In point three Ellis contends that the court erred in overruling his objection to the State's cross-examination during the punishment phase of the trial regarding his two prior convictions for unlawfully carrying a weapon. Furthermore, Ellis contends that the court erred in denying his motion for mistrial following the prosecutor's improper closing argument during the punishment phase. At the outset we observe that the point is multifarious. Such a multifarious point fails to properly preserve any error. // Nevertheless, we will address the points because they direct this court to the complaints raised. //

Ellis took the stand during the punishment phase of the trial for the sole purpose of testifying that he had never been convicted of a felony in this state or any other state or under the laws of the United States. The prosecutor then pursued the following inquiry on cross-examination:

Q. Mr. Ellis, you've been convicted of unlawfully carrying a weapon, in 1976; haven't you?

[Defense Counsel]: Judge, we're going excuse me. We're going to object to that. That is not a proper question. That is an offense that is not admissible in this cause. And he knows that.

(An on-the-record bench conference was had as follow:)

[Prosecutor]: Is it a final conviction?

[Defense Counsel]: No; it's a misdemeanor.

[Prosecutor]: It's my opinion that the

(Both attorneys were whispering simultaneously and the reporter is unable to make a clear record at this point.)

[Prosecutor]: It's probative.

THE COURT: I overrule the objection.

(Upon completion of the bench conference, the following occurred:)

Q. You were convicted of unlawfully carrying a weapon in 1976; weren't you?

[Defense Counsel]: We would further object, that it is not probative in nature and is more prejudicial than probative. (sic)

THE COURT: I overrule the objection.

A. Yes, sir.

Q. You were also convicted of unlawfully carrying a weapon, in 1980; were you not?

A. Yes, sir.

First, we note that any complaint regarding the 1980 conviction was waived because defense counsel failed to object to its admission. // Furthermore, evidence of the prior convictions was admissible, not because it was proper impeachment under Rule 609 of the Rules of Criminal Evidence, but because it was evidence of the "prior criminal record of the defendant" as defined by article 37.07, section 3, of the Texas Code of Criminal Procedure. // According to the Court of Criminal Appeals, a misdemeanor conviction is admissible during the punishment phase as "a final conviction in a court of record" under article 37.07, section 3. // Therefore, the court properly overruled Ellis' objection to the admission of his prior convictions for unlawfully carrying a weapon.

Ellis also complains of the following comments made by the prosecutor during his closing argument:

You have a situation that you've got a pattern. He started started off carrying a weapon. He got convicted of it. He didn't learn his lesson. Four years later he got convicted of carrying a weapon, again. And why does someone carry an illegal weapon? Why is someone convicted of carrying a weapon? You don't get convicted if you're out bird hunting. You don't get convicted if you're going to target practice. Why does someone carry a weapon? They carry a weapon to kill people, folks.

[Defense Counsel]: That is not that's not in the record, Your Honor. We're going to object to that. And that is a misstatement of the law.

(Emphasis added). The court sustained the objection and instructed the jury not to consider the argument for any purpose, but denied Ellis' motion for mistrial.

Proper jury argument falls within one of the following categories: (1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to the opponent's argument; or (4) a plea for law enforcement. // All other arguments are improper. Although the prosecutor was entitled to summarize the evidence and to make reasonable deductions from the evidence, including the evidence of Ellis' two prior convictions for unlawfully carrying a weapon, for a prosecutor to argue outside the record is improper. // As a result, the trial court properly sustained Ellis' objection that the prosecutor's comment "They carry a weapon to kill people, folks" was outside the record.

However, when the trial court instructs the jury to disregard the improper argument but denies the defendant's motion for mistrial, error results only when the argument is extreme, manifestly improper, injected new or harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory that its prejudicial effect could not reasonably be removed from the minds of the jurors by the instruction given. // The prosecutor did not repeat the improper argument, but, instead, directed the jury's attention back to the evidence concerning the prior convictions and made a proper plea for law enforcement. Based on our examination of all the jury arguments, we hold that the prejudicial effect of the improper argument was removed from the minds of the jurors by the court's instructions to disregard the prosecutor's comment, and thus, no error occurred in denying the motion for mistrial. // We overrule point of error three.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed October 6, 1993

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