KENNETH WAYNE HUNT, Appellant v. THE STATE OF TEXAS, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-88-01211-CR

Case Date: 12/21/1989

Plaintiff: KENNETH WAYNE HUNT, Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:KENNETH WAYNE HUNT, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed and Opinion filed December 21, 1989 S In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-88-01211-CR ............................ KENNETH WAYNE HUNT, Appellant V. THE STATE OF TEXAS, Appellee ................................................................. On Appeal from the 194th District Court Dallas County, Texas Trial Court Cause No. F88-80014-RM ................................................................. OPINION Before Justices McClung, Lagarde, and Ovard Opinion By Justice Ovard Kenneth Wayne Hunt was convicted by a jury of the offense of aggravated robbery. Punishment was assessed by the court at forty years' confinement in the Texas Department of Corrections. In four points of error, Hunt complains on appeal that the trial court erred in failing to suppress an in-court identification of Hunt, and that various jury arguments were improper and warranted a mistrial. Finding no merit in these contentions, we affirm. In his first point of error, Hunt maintains that the trial court erred in failing to suppress his in-court identification by two robbery witnesses. Hunt argues that the identification was tainted as based upon an earlier photo line-up containing a photo of Hunt taken during an alleged illegal detention. The record reflects that the robbery witnesses, clerks of the convenience store, gave police a detailed description of Hunt after the robbery occurred. One week after the robbery, Hunt was seen near the convenience store by one of the clerks, who notified the police. Based upon the description given by the clerk, the police apprehended Hunt, took him to the Crimes Against Persons Office, had photos taken and then released him. One of the clerks was subsequently shown a photo line-up containing a picture of Hunt taken while Hunt was at the Crimes Against Persons Office. Even if the initial detention of Hunt, during which the allegedly tainted photos were taken, was illegal, which we do not hold; we conclude that the necessary causal relationship between the allegedly illegal detention and Hunt's identification in court, is lacking. Pinchon v. State, 683 S.W.2d 422, 426 (Tex. Crim. App. 1984). The record reflects that the clerks were able to give an accurate description of Hunt based upon the events which transpired during the robbery. The robbery occurred in broad daylight during the afternoon when Hunt was the only person in the store. The clerks testified that Hunt was only a few feet away from them during the transaction, providing the clerks with an optimum identification opportunity. Further, one clerk testified that Hunt had previously robbed her at the same convenience store. Based upon these facts, coupled with the clerks' testimony that their identification of Hunt was based upon their independent recollection of the circumstances surrounding the robbery and not upon any photos shown to them, we hold that the in-court identification of Hunt was properly admitted and survived any taint of an alleged illegal detention. Pinchon, 683 S.W.2d at 426. Furthermore, the face of a defendant cannot be the suppressible fruit of an illegal arrest. Id.; see also, Wong Sun v. United States, 371 U.S. 471, 484 (1963). Hunt's first point of error
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is overruled. In point of error number two, Hunt maintains that the trial court erred in failing to sustain his objection to an allegedly improper jury argument made by the State. The State's argument occurred as follows: Mr. Oatman (counsel for State): "May it please the Court, Mr. Byck, Ms. Doolin, ladies and gentlemen of the jury, Mr. Byck doesn't like the case. And I'm not surprised if he stood up and said, `Well, the girls convinced me that they saw what they saw. I think he's guilty. He wouldn't be doing this job, so don't go back and say he's got to do what he's got to do." This argument prompted an objection by Hunt that the State was attempting to strike at Hunt over his counsel's back. The four areas of proper jury argument are: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel or; (4) plea for law enforcement. Good v. State, 723 S.W.2d 734, 735 (Tex. Crim. App. 1986); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Any argument that fails to fall within one of these accepted categories is subject to an objection. However, failure to properly object and obtain a ruling results in a waiver of that point on appeal. Jackson v. State, 536 S.W.2d 371, 373 (Tex. Crim. App. 1976); Tex. R. App. P. 52(a). The court's response to Hunt's objection was, "Let's just stay within the record, counsel." Although the response arguably implies a sustaining of the objection, case law and the rules of appellate procedure require a specific ruling. Even if the objection is considered to be sufficiently specific, the failure of Hunt to request a curative instruction for the jury and to move for a mistrial also results in the waiver of his point. Keller v. State, 518 S.W.2d 373, 375-77 (Tex. Crim. App. 1975); Duran v. State, 505 S.W.2d 863, 866 (Tex. Crim. App. 1974). Consequently, Hunt's point of error number two is overruled. Hunt, in his third and fourth points of error, complains that certain jury arguments, which were properly objected to and from which curative instructions were requested and granted, should have warranted a mistrial. The first argument, addressed by Hunt in his third point of error, occurred as follows: Mr. Oatman (counsel for the State): "Let's think about it. He says they didn't give a description. We are just going off on some incredible testimony. Well, I want you to perform an experiment when you go back in that jury room. All of you, all twelve of you, sit down. You have seen me. You've seen Russell, the Court Reporter. You write out the type of description--" This argument prompted an objection from Hunt that the State was inviting the jury to go outside the record. This objection was sustained and a curative instruction was granted at Hunt's request. The second allegedly improper jury argument, addressed by Hunt in his fourth point of error, centered on the following language: Mr. Oatman (counsel for the State): ". . . She has come face to face with Kenneth Wayne Hunt. Do you think she remembers? We have brought you everything we have. Nora Denny [a convenience store clerk] has done what she can. Beatrice Sanchez [another convenience store clerk] has done what she can. And they are still out there. They are still out there, and they are hopeing [sic] you will do the right thing." An objection complaining about the lack of testimony from the clerks as to what they hoped, being absent from the record, was sustained. A curative instruction was also granted in favor of Hunt. While these jury arguments did not fall within any of the four accepted categories, neither did they rise to the level of such egregious arguments which have been held to warrant reversals. Good, 723 S.W.2d at 735; see, e.g. Lewis v. State, 529 S.W.2d 533, 534 (Tex. Crim. App. 1975)(reference that prosecutors had taken solemn oath to God but that defense counsel had not held reversible); Boyde v. State, 513 S.W.2d 588, 591 (Tex. Crim. App. 1974)(prosecutor arguing that he would never defend criminals warranted reversal); Bray v. State, 478 S.W.2d 89, 90 (Tex. Crim. App. 1972)(prosecutor stating he was grateful for not having to make a living representing defendants held reversible). An erroneous jury argument is not reversible unless, examining the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or inject new facts, harmful to the accused, into the trial. Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988). Because we conclude that the objected to jury arguments do not satisfy this standard, we overrule points of error numbers three and four. The trial court's judgment is affirmed.

JOHN OVARD JUSTICE Do Not Publish Tex. R. App. P. 90 881211F.U05

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File Date[12-21-89] File Name[881211F]

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