holding that the prosecutor’s statements that the inclusion of self-defense in the charge “doesn’t mean that the Court believes that is what happened” was improper because the statements were “direct references to the trial court’s beliefs about the case”
How later courts described this case
- holding that the prosecutor’s statements that the inclusion of self-defense in the charge “doesn’t mean that the Court believes that is what happened” was improper because the statements were “direct references to the trial court’s beliefs about the case”
- holding that, during closing arguments, a party may not refer to any belief, or non-belief, of the trial court
Written by the judges who cited it.
The opinion
DOUGLAS, Judge,
dissenting.
The majority holds that the prosecutor’s comment concerning the court’s charge was improper and reverses the conviction. The prosecutor merely commented in effect that, if the evidence raises the issue of self-defense, then the court must submit an instruction on that defense. Nothing stated in McClory v. State, 510 S.W.2d 932 (Tex.Cr.App.1974), warrants this reversal.
During final argument at the guilt-innocence phase of the trial, the following occurred:
“Now, let me talk to you about some of the things the Court charged you on. Now, understand that I know that Mr. Macaluso explained to you in Voir Dire the fact that you have things in here on self defense and voluntary manslaughter, doesn’t mean that the Court believes that is what happened.
“MR. MITCHELL: Your Honor, I would object to any reference as to what the Court believes or does not believe. The Court does not comment on the evidence.
“THE COURT: I’ll overrule the objection.
“MR. MITCHELL: Note our exception. “MR. HUFF: Now, folks, that means that you can consider what I an about to say. That doesn’t mean that the Court believes that self defense is really what happened or that voluntary manslaughter is really what happened. “MR. MITCHELL: Your Honor, could I have a continuing objection to this argument?
“THE COURT: Yes, you can have a running objection.
“MR. MITCHELL: Thank you.
“MR. HUFF: Now, that means the issue was raised by someone, in this case the Defendant, and it has to go in this charge. . . .” (Emphasis added).
The majority correctly recognizes that McClory v. State, supra, is distinguishable on its facts from the instant case but concludes that the principles set forth therein are controlling. This Court in that case stated:
“We do not wish to be understood as holding that the State cannot, in plain language, explain how the jury instructions are developed. A prosecutor may without referring to any belief of the trial court properly advise the jury that *385 any relevant testimony which raises a material fact issue will cause the court to submit a charge explaining the law on that issue. . . . ”
The Court then elaborated on this statement:
“In Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230 , we held that to be within the stamp of approval jury arguments need to be within the area of (1) summation of the evidence; (2) reasonable deduction of the evidence; (3) answer to argument of opposing counsel; or (4) a plea for law enforcement. * * * However, the prosecuting attorney must be very cautious not to bring before the jury any reference to any presumed opinion of the trial judge on any fact issue covered by the court’s charge.” (Emphasis added). 510 S.W.2d at 934 .
In the instant case, the prosecutor did not refer to any presumed opinion of the trial judge on either the self-defense issue or the involuntary manslaughter issue. Nor did he ask the jury to convict upon evidence outside the record. Nor did he make a misstatement of law. Nor did he tell the jury what the judge did or did not believe. He did no more than tell the jury that the judge should charge upon an issue when the evidence raises it and that the judge was not required to believe those issues so raised —here, self-defense and involuntary manslaughter.
In Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975), and numerous other cases, this Court has held that jury argument must either be extreme or manifestly improper or inject new and harmful facts to be prejudicial. The argument in the present case meets none of these criteria.
The judgment should be affirmed.