Montelongo v. State

TEAGUE, Judge,

dissenting.

Judge Odom of this Court in Stearn v. State, 487 S.W.2d 734 (Tex.Cr.App.1972), recently stated the following: “There seems to be a growing tendency by the prosecutors [of this State] to go outside the record in jury argument.”

Today, however, in affirming this conviction, I believe that a majority of this Court puts its endorsement and approval upon an argument which was clearly outside the record. * The majority panel opinion derided it as “maudlin and in poor taste”. It concerns a prosecuting attorney who, over objection, read to the jury a hypothetical letter addressed to the young deceased person. The appellant timely and properly objected to the argument, on the ground that it was “outside the record.” The trial court overruled appellant’s objection. Because I find that the argument to be outside the record, extremely or manifestly improper, and highly prejudicial to the appellant, the appellant’s conviction should be reversed and not affirmed. See McKenzie v. State, 617 S.W.2d 211 (Tex.Cr.App.1981) (Improper for prosecuting attorney in his argument to conjure up hypothetical witnesses). To the action of the majority in affirming this conviction, I must respectfully dissent.

This Court long ago, in Pena v. State, 137 Tex.Cr.R. 311 , 129 S.W.2d 667, 669 (1939), advised the Bench and Bar of this State what the object and principal purpose of jury argument should be, and also stated that jury argument should not be used to arouse the passions of prejudices of the jury by matters not properly before them.

“The object and principal purpose of an argument to the jury, as we understand it, is to aid and assist them in properly analyzing the evidence and arrive at a just and reasonable conclusion based on the evidence alone, and not on any fact not admitted in evidence. Nor should resort be had in argument to arouse the passion or prejudice of the jury by matters not properly before them.”

In Andrews v. State, 150 Tex.Cr.R. 95 , 199 S.W.2d 510 , 514 (1942), this Court also made the following statements:

“The purpose and object of arguments are to discuss the evidence and to assist the jury in arriving at a proper conclusion of the case from all of the facts and circumstances proven. Improper implications or vilifications are not conducive to *718 the attainment of that object. We have time and again called attention of the prosecuting attorneys to the danger of departing from legitimate argument as it may result in great harm to the accused which will in such instance require a reversal of the case.

See also Berger v. United States, 295 U.S. 78 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935).

The “letter”, which was not in evidence but which was submitted to the jury through the prosecutor’s jury argument, did nothing “to aid and assist [the jury] in properly analyzing the evidence [presented to it].” Pena v. State, supra. I have concluded that the prosecutor’s argument that was made, which was predicated upon the “letter”, did nothing less than “arouse the passions [and] prejudices of the jury [with] matters not properly before them.” Such personal comments as the “feelings” the “author” of the “letter” may have had toward the young deceased person, the “author’s” personal belief that the deceased was a “beautiful child”, that he believed her to be “one of God’s very own treasures,” and that “Today was a beautiful day”, “The air felt as cool as ice cubes and fresh mint”, and other such comments describing the young deceased person and the “author’s” feelings for her, and his thoughts about the matter, were all outside the record and should not have been made.

The majority, by affirming this conviction, impliedly agrees with the State’s claim that “the imaginary letter was, in effect, no different from the argument given in many murder cases, that the deceased had a right to enjoy the rest of his or her life.” Not only do I disagree with that claim, but I find that this argument went beyond such a claim. By injecting into the case his personal, albeit hypothetical, “feelings” and descriptions about and toward the young deceased person, the prosecuting attorney put before the jury “facts” which were not supported by the record. The comments he made have no basis in fact. They could have only been intended to inflame the emotions, passions, and prejudices of the jury. Even though the prosecutor disclaimed during his argument an intent to present the “letter” as “fact”, nevertheless, it is clear from reading the argument that the “letter” must have conveyed to the jury the impression that the “letter” embodied the prosecutor’s own personal feelings and descriptions of the young deceased child, which are reflected by such statements as “You embody the heart and soul of Christmas, you are warmth, excitement. Your lovely innocence’s all there to share.” Such was clearly improper argument as it injected “facts” into the case, which “facts” were not in evidence before the jury. The argument should not have been made.

In Moser v. State, 91 Nev. 809 , 544 P.2d 424 (1976), the Nevada Supreme Court not only condemned a “Merry Christmas” type argument, wherein the prosecuting attorney had argued the following:

“December 22, 1972, Merry Christmas, from Ed Moser [the defendant] to the Batiste family [the family of the deceased], .. Wouldn’t it be nice, as Mr. Bonaventure [defense counsel] says, if we could have Mr. Batiste [the deceased] back here? If emotion and a guilty conscience could only bring Roy Batiste back here, wouldn’t it be nice? If sorrow could bring Roy Batiste back to his wife and six kids, wouldn’t it be nice? You saw this Defendant testify up here yesterday. He was emotional, he broke up in places but let’s look at it realistically. Do you think for one minute that this man is sorry for Roy Batiste? Do you think for one minute that man feels sorry for Roy Batiste and those six kids, or do you think this man feels sorry for himself because he committed a murder in cold blood?,

and held the following:

The comments made were improper. They were designed to inflame the emotions of the jury. They had no place in a trial, and counsel’s objection should have been sustained...,

but speaking through its Chief Justice, in his concurring opinion, stated the following:

Accordingly, in eases tried after this date, where the trial transcript discloses improper argument, I understand that this *719 court will consider referring the offending attorney to the local administrative committee for determination of an appropriate penalty. Where a retrial is necessitated, I suggest the penalty might properly include payment of court costs to the state, and an appropriate assessment to cover the cost of public or private defense counsel.

More than a century of admonitions has failed to engender in all who serve as prosecutors that instinct for propriety and fairness which their public duty obviously demands. Manifestly, another approach is indicated.

A proceeding designed to determine the guilt or innocence of an accused is not the proper forum to appeal to a jury’s emotions. By inflaming the passions and emotions of the jury, through such argument as was made here, can only induce a jury to return a finding of guilt based on passions, emotions, and sympathy, and not on whether the accused is actually guilty of committing the criminal wrong for which he is on trial.

I believe that by affirming this conviction the majority has effectively emasculated the real and true purpose and meaning of jury argument, and after today the proverbial “skunk”, see my dissenting opinion in Carter v. State, 614 S.W.2d 821 (Tex.Cr.App.1981), is now permitted to carry the day under the problematical heading of “a plea for law enforcement”.

Prosecuting attorneys of this State should never forget what Judge Lattimore of this Court stated many years ago in Vargas v. State, 128 Tex.Cr.R. 139 , 79 S.W.2d 860 (1935):

The closing argument of the state is a powerful weapon in its hands. Men on the jury unused to court procedure, not quite sure what should be remembered as the case proceeds, hear their county [or district] attorney, most frequently, as in this case, a highly esteemed officer, in the closing moments of the argument, tell them what has been said, what the accused had admitted, and his statements are properly accorded weight.

Unfortunately, the majority of this Court forgets that not very long ago, in McKenzie v. State, supra, this Court, by unanimously denying the State’s motion for rehearing, has ruled that a prosecutor’s jury argument, which conjured up hypothetical witnesses, was reversible error even though an objection to the argument had been sustained. I am unable to understand how a conjured-up, emotionally laden letter, read to a jury by the prosecuting attorney at the guilt stage of the trial, can be any less injurious than conjuring up hypothetical witnesses, as was done in McKenzie v. State, supra; especially in this instance where the appellant’s objection was overruled and there sustained.

Today’s decision, I fear, will breed further improper jury arguments — all under the guise of pleas for law enforcement.

I, therefore, respectfully dissent.

ODOM, CLINTON and MILLER, JJ., join.

The entire objectionable jury argument is set out on pages 714 — 716, inclusive, of the majority panel opinion.