Bobby Bright v. State of Texas--Appeal from 54th District Court of McLennan County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-00-00344-CR

Case Date: 09/19/2001

Plaintiff: Bobby Bright

Defendant: State of Texas--Appeal from 54th District Court of McLennan County

Preview:Bobby Bright v. State of Texas--Appeal from 54th
District Court of McLennan County
MAJORITY | MAJORITY
Bobby Bright v. State of Texas /**/
IN THE
TENTH COURT OF APPEALS
No. 10-00-344-CR
BOBBY BRIGHT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 1999-848-C
O P I N I O N
Bobby Bright was charged and convicted of burglary of a habitation. During guilt/innocence, Bright admitted to
serving time for thirteen felony convictions. During punishment, Bright pled true to two prior felony convictions. The
jury sentenced him to life in prison. He appeals, raising two issues for review. We affirm.
Background
Monty Brown s home was burglarized. Among the property stolen was a shotgun, golf clubs and a television.
Detectives from the Hewitt Police Department lifted a fingerprint from Brown s home. It later was identified as a print
from Bright. Several days later, Brown s sister discovered his property at a pawn shop. Bright had pawned the
merchandise on the same day as the burglary.
Bright admitted to pawning the property, but denied he burglarized Brown s home. He testified he received the
property from a friend who asked him to pawn it. Bright theorized that the evidence of the fingerprint found in Brown
s home had been tampered with.
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Improper Argument
Bright contends in his first issue that the State improperly struck at Bright over the shoulder of his attorney during the
State s argument on guilt/innocence and that the trial court erred in overruling his objection to that argument. The State
made the following argument to which Bright objected:
. . . Mr. Hunt is a very qualified attorney. . . We agree on a few things, here in this case. Number one; the real issue is
identity, in this case. That fingerprint; how did it get there? We know whose it is; I think Mr. Hunt has even stipulated
that, now with Mr. Fuller s testimony. . . Now, let s answer some of Mr. Hunt s questions, first. He says, Well, the
Police, within one hour of pawning that item, by the tickets, 4:25, 4:31, could have known about Bobby Bright s record
and started framing him, for some reason. Why they would want to frame somebody that they never knew, in the first
place; they could have done that, he says, but he s wrong. You know why he s wrong? Because, they didn t find that
property until Monday. You heard Brock testify; his sister found it. He was called down there, Monday, and that s
when they knew Bobby Bright was involved and not until them. The prints were already in the envelope; they were
sealed; they were handled carefully. What do you do, when you re a defense attorney? You re clients [sic] guilty and
they ve got him; Let s chase some rabbits out here, let s point- -
Counsel:Your Honor, I m going to object to that line. He s striking at the defendant, over the shoulders of the Defense
counselor, I m going to object on that basis.
Court: Overruled.
State:Don t follow that rabbit trail. I ask you to take the evidence that you heard, from this witness stand, evaluate it
and arrive at a proper verdict, based on that evidence, not speculation.
Jury arguments are proper if they fall within the following four categories: (1) summation of the evidence, (2)
reasonable deduction from the evidence, (3) answer to the argument of opposing counsel, and (4) plea for law
enforcement. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997); Alejandro v. State, 493 S.W.2d 230, 231
(Tex. Crim. App. 1973). Generally, error results from improper argument only if, examined in light of the entire
record, the argument is extreme, is manifestly improper, injects new and harmful facts into the case or violates a
mandatory statutory provision. Kelly v. State, 18 S.W.3d 239, 244 (Tex. App. Amarillo 2000, no pet.).
Legitimate arguments by defense counsel cannot serve as a basis for permitting prosecutorial comments that cast
aspersion on defense counsel s veracity. Mosely v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); Dinkins v.
State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). A prosecutor runs the risk of improperly striking at a defendant
over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the
argument explicitly impugns defense counsel s character. Mosely, 983 S.W.2d at 259.
If the argument is improper and the court should have sustained the objection, the next step is to determine whether the
error warrants reversal. See id. Improper comments on defense counsel s honesty do not amount to a constitutional
violation. Id. Such comments constitute other errors within the purview of Rule 44.2(b) of the Rules of Appellate
Procedure. Tex. R. App. P. 44.2(b); Id. When reviewing this type of argument, we look to three factors to determine
whether the argument was harmful and warrants reversal. Id. at 259, 260. They are: (1) severity of the misconduct
(magnitude of prejudicial effect of the comments); (2) measures adopted to cure the misconduct such as instruction by
the judge; and (3) the certainty of conviction absent the misconduct (strength of evidence supporting conviction). Id.
The comments made in this case are similar in nature to those made in Mosely. Like the Mosely Court, we will
assume, without deciding, the comments were improper and move to the harm analysis. In light of the first harm
analysis factor, the severity of the assumed misconduct was very low and the jury was in a position to evaluate the
truthfulness of the State s assertion. The second factor does not come into play because no attempts to cure the
argument were performed. Regarding the third factor, Bright s fingerprint was found inside Brown s home. Bright
pawned Brown s property on the same day as, possibly within an hour of, the burglary. Bright s credibility was
severely diminished by his thirteen prior felony convictions. Thus, the certainty of his conviction absent the comments
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by the State was strong. Balancing these factors, we find the error, if any, was harmless. Bright s first issue is
overruled.
Exclusion of Evidence
In his second issue, Bright contends the trial court erred in excluding evidence of his W-2 statements which were
relevant to establishing his lack of motive to commit the burglary. During Bright s testimony, the following took place:
Q: Okay, after you got out of prison, did you go to work?
A: Yes, sir.
Q: Okay, I m going to mark I m going to show you what s already been marked as, excuse me, Defense one through
five and ask you, if you recognize that?
State: Your Honor, I m going to object to that. The defense Counsel or has already showed those to us; they are W2
records, for a time period before this. They are not relevant to this issue.
Defense: Your Honor, we believe it is relevant because it shows his work history and we would offer them as Defense
one through five.
Court: Let me see them. I sustain the objection.
The State argues that Bright failed to preserve this issue for our review. To preserve the issue of excluded evidence for
review, the proponent of the evidence excluded must make an offer of proof making the substance of the evidence
known to the court unless it was apparent from the context of the questions asked. Tex. R. Evid. 103 (a)(2); Warner v.
State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1996). Also, the arguments asserted at trial by the proponent of the evidence
must comport with the arguments asserted on appeal; otherwise, the issue is not preserved. See Jenkins v. State, 912
S.W.2d 793, 814-815 (Tex. Crim. App. 1993); In re C.Q.T.M., 25 S.W.3d 730, 738 (Tex. App. Waco 2000, pet.
denied).
Bright did not make a traditional offer of proof. But, the substance of the evidence was apparent from the context of
the argument and the evidence was tendered to the court for its inspection. However, at trial, Bright only argued that
the evidence was relevant to show his work history; not that it would establish a lack of motive for committing the
burglary. Bright s arguments at trial do not comport with the argument asserted on appeal. His second issue is not
preserved for review and is overruled.
Conclusion
Having overruled both Bright s issues, we affirm the judgment of the trial court.
TOM GRAY
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
(Justice Vance concurring)
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Affirmed
Opinion delivered and filed September 19, 2001
Do not publish
[CRPM]
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