Denton v. State

CAYCE, Chief Justice,

dissenting.

I respectfully dissent because I disagree with the panel’s harm analysis. Applying the standards of Orona v. State, 791 S.W.2d 125 (Tex.Crim.App.1990) to the facts of this case, and recognizing that the overwhelming evidence of the appellant’s guilt is a variable to be calculated in the harmless error analysis, I would conclude beyond a reasonable doubt the improper jury argument by the State did not contribute to the appellant’s conviction or punishment.

As the panel readily acknowledges, the State did not intentionally attempt to taint the trial process with the improper argument. On two separate occasions the State made an inadvertent reference to a purported statement made by the appellant which showed that the offense was intentional. On cross-examination, the appellant testified that he did not remember making the statement. I agree with the panel that, while there may not be legally sufficient evidence of the specific statement in the record, there is more than sufficient evidence to support the jury’s finding of intent. In my view, however, the State’s comments did not contribute to this finding. Given the overwhelming evidence of appellant’s guilt, no rational juror would have accepted the appellant’s “weak” defense of accident and returned a “not guilty” verdict in the absence of the comments.

Furthermore, when defense counsel objected to the State’s comment the second time it was made, the trial court sustained the objection and instructed the jury to disregard the argument. Since the comment went to an element of the offense which was overwhelmingly established by the entire record, the probable impact of the repeated error, if any, was minimal, particularly when the jury was specifically instructed to disregard the comment.

Moreover, I do not agree with the panel’s conclusion that a reasonable consequence of the improper arguments may have been to increase the appellant’s punishment. The *587 jury assessed punishment at twenty-two years. This is at the lower end of the punishment range and less than the twenty-five to thirty years the prosecutor requested. The panel points to no factors that would justify the assessment of a lighter sentence for a crime of this nature than that which the jury awarded. Even if the jury could have determined this to be a “crime of passion,” the sentence actually returned by the jurors would squarely fit the crime.

While I do not condone the prosecutors’ conduct in this case, I believe the probable collateral implications of their unintentional comments were harmless. The errors did not, in my opinion, prejudice the jurors’ decision-making process; they were able to properly apply the law to the facts in order to reach a verdict. See Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App.1989). I would, therefore, hold the improper argument harmless beyond a reasonable doubt and overrule appellant’s fourth point of error.