Opinion

McKay v. State

  • 707 S.W.2d 23
  • 1985 Tex. Crim. App. LEXIS 1475
Court
Court of Criminal Appeals of Texas
Filed
Oct 2, 1985
Status
Published
Author
Clinton
On the bench
Miller, Teague, Clinton
Cited by
321 cases
Authority
More cited than 10.8%

concluding prosecutor’s statement that “there is no evidence to that effect” and “there is no evidence of any phantom [killer]” was not improper reference to defendant’s failure to testify but was invited by counsel’s argument that someone else had committed the murder

How later courts described this case

  • concluding prosecutor’s statement that “there is no evidence to that effect” and “there is no evidence of any phantom [killer]” was not improper reference to defendant’s failure to testify but was invited by counsel’s argument that someone else had committed the murder
  • concluding prosecutor=s statement that Athere is no evidence to that effect@ and Athere is no evidence of any phantom [killer]@ was not improper reference to defendant=s failure to testify but was invited by counsel=s argument that someone else had committed the murder
  • determining that following closing argument by State did not harm defendant: “‘[T]hat is a moral vacuum. He has no conscience, no heart, no recognition of right or wrong. You are perched on the rim of hell, looking deep into it”
  • explaining that “the prosecutor may argue his opinions concerning issues in the case so long as the opinions are based on the evidence in the record and not as constituting unsworn testimony”

Written by the judges who cited it.

The opinion

CLINTON, Judge,

dissenting.

While there is a great deal in the opinion of the Court with which I cannot agree, I would be content simply to dissent but for the majority’s overruling the second ground of error on a theory that evidence revealing the extraneous robbery offense is “relevant as rehabilitation evidence for the testimony of Kevin Long.” If there is authority for that proposition, it ought to be cited.

When Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983), speaks of “relevance to *40 a material issue the State must prove” in a circumstantial evidence case, id., at 346 , it and the cases cited make clear that “issue” means such matters as motive, intent and design, Etchieson v. State, 574 S.W.2d 753, 760 (Tex.Cr.App.1978) and Mulchahey v. State, 574 S.W.2d 112, 117 (Tex.Cr.App.1978), or identity, Jones v. State, 568 S.W.2d 847, 858 (Tex.Cr.App.1978). 1

Just as clearly, in Caldwell v. State, 477 S.W.2d 877, 879 (Tex.Cr.App.1972), the Court rejected the theory advanced by the majority opinion in this cause, viz:

“To hold that the cross-examination of this [complainant] would permit the introduction of an extraneous offense would be tantamount to holding that such testimony would be admissible in any case where defendant’s counsel exercised the constitutional right of cross-examination. This is not and should not be the law.” [Emphasis added]

Accordingly, I dissent.

TEAGUE, J., joins.

. While some opinions have drawn a distinction between cases proved by direct evidence and those proved by circumstantial evidence, based on what seems to be simply loose language in Etchieson and Mulchahey, supra, as well of the formulation in Jones, supra, just recently in Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App. 1985), the Court pointed out, “There is no conceptual necessity to differentiate between circumstantial and direct evidence in determining the admissibility of extraneous acts of misconduct,” id., at 879-880, n. 2 .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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