Jason Ishee v. The State of Texas--Appeal from 299th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00212-CR
Jason Ishee, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 0955584, HONORABLE JON N. WISSER, JUDGE PRESIDING
A jury found appellant Jason Ishee guilty of capital murder. Tex. Penal Code Ann. 19.03(a)(2) (West 1994). The State did not seek the death penalty, and the district court assessed punishment at imprisonment for life. Tex. Penal Code Ann. 12.31(a) (West 1994); Tex. Code Crim. Proc. Ann. art. 37.071, 1 (West Supp. 1998). We will affirm.

David Reynolds, Robert Watt, and Ishee, each of whom was eighteen or nineteen years old, spent the late afternoon of October 31, 1995, loitering outside an Austin shopping mall. As night fell, Watt and Ishee agreed on a scheme to steal Reynolds's ten-year-old car. They asked Reynolds to drive them to an apartment complex, ostensibly to purchase marihuana. At the complex, they lured Reynolds to the rear of the building where they beat him to death with their fists and feet, and with a large rock. Watt and Ishee took Reynolds's car and five dollars they found in his pocket, then drove to Ishee's girlfriend's house. Ishee showed the girl the blood on his hands and bragged that he had killed someone. Watt and Ishee spent the rest of that night and the following day driving around Austin in Reynolds's car, then left town. They were arrested on November 3 in Wharton, still driving the stolen vehicle. Each man gave a written statement to the police admitting the robbery-murder, blaming the other as the chief actor, and denying an intent to kill Reynolds. (1)

Ishee's first point of error complains of a remark made by the prosecutor during his opening statement to the jury. The prosecutor said:

 

In all criminal cases everyone has a certain role that they play. The role of the Judge in this criminal case is what we call the law finder or the law giver. Our Judge decides what evidence is and is not allowed and what laws are applied in this particular case. The role of the defense attorney is to zealously represent their clients. The role of the prosecutors is to see that justice is done.

 

(Emphasis added.) Appellant objected that the prosecutor was "striking at my client over the shoulder of counsel." The objection was overruled. The prosecutor continued, "Is to see that justice is done and to bring to you evidence that is relevant to this case. And your role in all of this is what we call the fact finder. . . ."

Appellant argues that the emphasized portion of the prosecutor's statement was comparable to the remarks deemed reversible error in Wilson v. State, 938 S.W.2d 57, 58-60 (Tex. Crim. App. 1996). In that case, the prosecutor told the jury during final argument, "I have taken a very sacred oath, in my opinion, to see that justice is done in every case I prosecute." He went on, "[Defense Counsel] has no such oath, and what he wishes is that you turn a guilty man free. That's what he wishes, and he can wish that because he doesn't have the obligation to see that justice is done in this case." After the defendant's objection was overruled, the prosecutor added, "His oath is to represent the interest of his client to his utmost within the bounds of the law. He's done that. But, see, it's not important to seek truth and justice under his oath. It is under mine." Id. at 58 (italics omitted). The Court of Criminal Appeals held these remarks to be a manifestly improper attack on defense counsel that, under the circumstances, could not be deemed harmless. Id. at 62.

In Wilson and in each of the cases it discusses, the prosecutor said in so many words that a defense lawyer's duty is to see that the guilty go free, even if it means using perjured testimony. The obvious purpose of the remarks was to inflame the minds of the jurors and to prejudice them against the defendant. The prosecutor's remarks in the cause before us, although improper, did not fall to the level of impropriety seen in Wilson. It was not insulting or disparaging to say that a defense lawyer has a duty to zealously represent his client. Unlike the prosecutor in Wilson, the prosecutor in this cause did not say or imply that this duty included the known use of perjured testimony in order to secure the acquittal of a guilty defendant. This cause is also distinguishable from Wilson because the challenged remark came during opening statements, rather than during closing arguments just before the jury retired to deliberate. See Amis v. State, 910 S.W.2d 511, 515 (Tex. App.--Tyler 1995, pet. ref'd) (statement early in trial has less impact on jury). Under the circumstances presented, we conclude that the prosecutor's remarks did not harm Ishee's substantial rights. Tex. R. App. P. 44.2(b); see Orona v. State, 791 S.W.2d 125, 128-30 (Tex. Crim. App. 1990) (argument that defense lawyers know how "to get people off" held harmless error). Point of error one is overruled.

Next, Ishee urges that the district court erred by refusing to admit "a refined, redacted version of the accomplice statement instead of the State's redacted version." Ishee refers to Watt's written confession, which was admitted in evidence after being edited to delete all references to Ishee. See Richardson v. Marsh, 481 U.S. 200, 211 (1987); Bruton v. United States, 391 U.S. 123, 135-36 (1968); McMahon v. State, 582 S.W.2d 786, 793 (Tex. Crim. App. 1978) (admissibility of nontestifying codefendant's confession). The redacted version tendered for admission by the State had large blank areas where the necessary deletions were made. Ishee tendered his own, retyped version of Watt's redacted statement that did not have blank spaces. The court admitted the State's tendered exhibit rather than Ishee's.

Ishee argues that the gaps in Watt's redacted statement invited the jury to "speculate as to the worst possible behavior to be attributable to Ishee. Had the Court let the jury receive [the defense version], virtually all such speculation . . . would be eliminated because the jury would not see the gaps." Ishee cites no authority supporting his argument. No motion for new trial was filed and there is no evidence that the jury did, in fact, speculate to Ishee's prejudice regarding the missing portions of Watt's statement. Reversible error is not presented. Point of error two is overruled.

Finally, Ishee complains that Watt's attorney repeatedly attempted to adduce evidence of irrelevant extraneous misconduct by Ishee. See Tex. R. Evid. 404(b). He refers us to the following portions of the record:

 

Watt's attorney asked Ishee's girlfriend if Ishee was "a violent person" and if he bragged about "going up and hitting people." Ishee's objections to these questions were sustained and the jury was instructed to disregard them. Ishee's motions for mistrial were overruled. Counsel also asked the witness how Ishee made money. She answered, "Sometimes he got it, you know, beating up people, sometimes he didn't." The court sustained Ishee's objection to this answer and instructed the jury to disregard it. Again, a motion for mistrial was overruled. Finally, counsel asked her if Ishee "had the ability to kill someone with his own hands without using a weapon." Ishee's objection was overruled and the witness answered affirmatively.

 

Ishee's girlfriend's mother was asked by Watt's attorney if Ishee was "a physically violent person" and if she was "afraid of what he might do" to her or her daughter. Ishee's objections to these questions were sustained and the jury was instructed to disregard. Motions for mistrial were overruled.

 

A young man who spent the afternoon at the mall with Ishee, Watt, and Reynolds was asked by Watt's attorney if Ishee told him that "he tried to jack somebody for a truck." Ishee's objection was sustained and the jury was instructed to disregard the question. There was no motion for mistrial.

 

Insofar as the last item is concerned, Ishee did not obtain an adverse ruling and nothing is presented for review. See Tex. R. App. P. 33.1.

Any error in asking an improper question or in admitting improper testimony will ordinarily be cured or rendered harmless by an instruction to disregard. Guzmon v. State, 697 S.W.2d 404, 408 (Tex. Crim. App. 1985). There is no basis in the record for concluding that the district court's instructions to disregard were not sufficient to cure any error in this cause. Similarly, we believe that the question and answer to which Ishee's objection was overruled, regarding his ability to kill a person with his hands, did not harm Ishee's substantial rights. It was undisputed at trial that Ishee and Watt killed Reynolds with their hands, feet, and a rock. Ishee bragged about the murder to his girlfriend and displayed his bloody hands to her. At trial, Ishee's primary strategy was to raise doubt as to whether he and Watt had intended to kill Reynolds, in order to secure a conviction for the lesser offense of murder. Under the circumstances, this point presents harmless error at most. Point of error three is overruled.

The judgment of conviction is affirmed.

 

J. Woodfin Jones, Justice

Before Chief Justice Carroll, Justices Jones and Kidd; Chief Justice Carroll not participating

Affirmed

Filed: May 14, 1998

Do Not Publish

1. Watt and Ishee were tried jointly. Watt's appeal is pending in this Court as our cause number 03-97-00213-CR.

of the State's redacted version." Ishee refers to Watt's written confession, which was admitted in evidence after being edited to delete all references to Ishee. See Richardson v. Marsh, 481 U.S. 200, 211 (1987); Bruton v. United States, 391 U.S. 123, 135-36 (1968); McMahon v. State, 582 S.W.2d 786, 793 (Tex. Crim. App. 1978) (admissibility of nontestifying codefendant's confession). The redacted version tendered for admission by the State had large blank areas where the necessary deletions were made. Ishee tendered his own, retyped version of Watt's redacted statement that did not have blank spaces. The court admitted the State's tendered exhibit rather than Ishee's.

Ishee argues that the gaps in Watt's redacted statement invited the jury to "speculate as to the worst possible behavior to be attributable to Ishee. Had the Court let the jury receive [the defense version], virtually all such speculation . . . would be eliminated because the jury would not see the gaps." Ishee cites no authority supporting his argument. No motion for new trial was filed and there is no evidence that the jury did, in fact, speculate to Ishee's prejudice regarding the missing portions of Watt's statement. Reversible error is not presented. Point of error two is overruled.

Finally, Ishee complains that Watt's attorney repeatedly attempted to adduce evidence of irrelevant extraneous misconduct by Ishee. See Tex. R. Evid. 404(b). He refers us to the following portions of the record:

 

Watt's attorney asked Ishee's girlfriend if Ishee was "a violent person" and if he bragged about "going up and hitting people." Ishee's objections to these questions were sustained and the jury was instructed to disregard them. Ishee's motions for mistrial were overruled. Counsel also asked the witness how Ishee made money. She answered, "Sometimes he got it, you know, beating up people, sometimes he didn't." The court sustained Ishee's objection to this answer and instructed the jury to disregard it. Again, a motion for mistrial was overruled. Finally, counsel asked her if Ishee "had the ability to kill someone with his own hands without using a weapon." Ishee's objection was overruled and the witness answered affirmatively.

 

Ishee's girlfriend's mother was asked by Watt's attorney if Ishee was "a physically violent person" and if she was "afraid of what he might do" to her or her daughter. Ishee's objections to these questions were sustained and the jury was instructed to disregard. Motions for mistrial were overruled.

 

A young man who spent the afternoon at the mall with Ishee, Watt, and Reynolds was asked by Watt's attorney if Ishee told him that "he tried to jack somebody for a truck." Ishee's objection was sustained and the jury was instructed to disregard the question. There was no motion for mistrial.

 

Insofar as the last item is concerned, Ishee did not obtain an adverse ruling and nothing is presented for review. See Tex. R. App. P. 33.1.

Any error in asking an improper question or in admitting improper testimony will ordinarily be cured or rendered harmless by an instruction to disregard. Guzmon v. Sta