Battershell, Roger v. State ( 2006 )

Affirmed and Memorandum Opinion filed April 20, 2006

Affirmed and Memorandum Opinion filed April 20, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01115-CR

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ROGER BATTERSHELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st Criminal District Court

Harris County, Texas

Trial Court Cause No. 975,051

M E M O R A N D U M   O P I N I O N

Appellant, Roger Battershell, was convicted of murder after entering a guilty plea before a jury; he received a sixty-year sentence.  He contends the trial court erred by proceeding to trial when the indictment had not been read to the jury and by overruling his objections to the prosecutor=s comments during jury argument.  We affirm.

Failure to Read Indictment Before Verdict Rendered

In his first point of error, appellant contends his conviction must be reversed because the prosecutor did not present the indictment to the jury before a verdict was rendered.

The Texas Code of Criminal Procedure sets out the order of a criminal jury trial, which must begin with the prosecutor reading the indictment to the jury.  Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon Supp. 2005).  This reading is mandatory.  Warren v. State, 693 S.W.2d 414, 415 (Tex. Crim. App. 1985). The reasoning behind this statutory procedure is that the indictment, as the basis for the prosecution, informs the defendant and jury before trial Ain precise terms of the particular charge@ against the defendant; the plea to the indictment as read then Amakes the issue.@  Peltier v. State, 626 S.W.2d 30, 31 (Tex. Crim. App. 1981) (quoting Essary v. State, 53 Tex. Crim. 596, 111 S.W. 927, 930B31 (1908)).  Until the indictment is read and a plea is entered, no issue has been joined between the State and the accused before the jury.  Id.  Error in failing to join the issue before trial can be cured at trial by reading the indictment to the jury, entering the plea, and reintroducing or stipulating to the evidence.  Warren, 693 S.W.2d at 416.  When this is done, the issue is joined and a trial on the issue may be held.  Id.  If the error is discovered after trial, it can be preserved by a motion for new trial, bill of exception, or motion to arrest judgment.  Id.  The defendant=s right to have the charge against him read and have his plea entered therein can be waived, but it is the State=s burden to show the defendant=s conduct constitutes a waiver.  Peltier, 626 S.W.2d at 31; see also Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (AIt is well settled that almost every right, constitutional and statutory, may be waived by the failure to object.@).

The record shows appellant was arraigned and entered his guilty plea before a jury. Appellant signed a written waiver of constitutional rights, stipulation, and judicial confession (which included the text of the indictment against him).  This was entered into evidence A[w]ithout objection from Mr. Battershell.@  The trial judge accepted appellant=s plea and charged the jury as to the guilt/innocence phase of trial.  Although the reporter=s record does not reproduce that charge, it is in the clerk=s record.  The charge shows the trial court read the indictment to the jury before instructing them to find appellant guilty in accordance with his plea.  The trial court=s judgment states the jury heard the indictment and appellant=s plea.^[1]  The record also reveals the trial court read the indictment to the venire before the jury was empaneled.  At no time did appellant object to the prosecutor=s failure to read the indictment.  Appellant did not file a motion for new trial or otherwise bring this issue before the trial court.  Accordingly, appellant waived his right to assert this error on appeal by failing to timely object or to file any post-trial motions.  See Tex. R. App. P. 33.1; Warren, 693 S.W.2d at 416; see also Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.CHouston [14th Dist.] 1997, no pet.) (explaining any violation of article 36.01 is waived absent objection).  Appellant=s first point of error is overruled.

Objections to Prosecutor=s Argument

In his second and third points of error, appellant contends the trial court committed reversible error by overruling his objections to the prosecutor=s argument during the punishment phase of trial.  There are four areas of proper jury argument: (1) evidence summation, (2) reasonable deductions from the evidence, (3) responses to opposing counsel=s argument, and (4) pleas for law enforcement.  Perry v. State, 977 S.W.2d 847, 850 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  Argument may also include matters of common knowledge.  Id.  To determine whether a party=s argument properly falls within one of these categories, we must consider the argument in light of the entire record.  Magana v. State, 177 S.W.3d 670, 674 (Tex. App.CHouston [1st Dist.] 2005, no pet.).

Following defense counsel=s argument that the abuse appellant suffered as a child provides some explanation for his criminal conduct, the State=s attorney responded in closing argument by saying:

[Prosecutor]:                   Now, they want to say we=re not providing excuses, that this is not an excuse, it=s just an explanation for Roger Battershell=s behavior.  I don=t know what else you call it.  We have adult survivors in our community every day walking among us that every day make conscious decisions and --

[Defense Counsel]: It=s not the evidence, Your Honor.

The Court:             Overruled.

[Prosecutor]:                   You know that there are people in your community who have been abused.  That is a fact of life, but it=s a fact of life that we as a society depend on each other to make conscious decisions, to make voluntary decisions, to exercise those choices and walk among us and make sure that we all feel safe.

Although appellant=s attorney had admitted during argument that, AThere may be some of you who know others who have been abused by their parents and made it,@ he argues on appeal that the prosecutor=s argument was improper.

A prosecutor has some leeway to respond to particular points made in defense counsel=s closing.  Longoria v. State, 154 S.W.3d 747, 764 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d).  We find the prosecutor was properly responding to defense counsel=s prior argument. 

A prosecutor may also argue matters of common knowledge.  Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim. App. 1981). Most citizens are aware there are adults in the community who have suffered abuse.  Most citizens are also aware these members of the community make conscious decisions every day.  The obvious implication in the prosecutor=s argumentCas is seen in its continuationCis that adult survivors of abuse reside in our community and make decisions not to injure others.  We find nothing impermissible in this argument.  See Nenno v. State, 970 S.W.2d 549, 559 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999) (finding statements that a person does not die quickly from lack of oxygen, that defendant had to know his only hope of getting away with crime was to kill victim, and that defendant must have contemplated killing victim before he assaulted her were all matters of common knowledge and were also substantiated by evidence at trial).

Appellant also complains about the following argument:

[Prosecutor]:                   You heard some evidence -- why in the world we were hearing some evidence that turned out to be absolutely false of him committing some burglary that didn=t happen.  That=s why we put our investigator on there to show you.  I guess if you throw enough stuff maybe something will hit and --

[Defense Counsel]: Objection.  [The prosecutor] knows that was a good faith offer based on the records, Your Honor.

The Court:             Overruled.

[Defense Counsel]: It=s casting aspersions.

The Court:             Overruled.

[Prosecutor]:                   Casting dispersions [sic] was what was attempting to be--

[Defense Counsel]: Objection, again, casting aspersions.

The Court:             Overruled.

The State may not use closing argument to accuse opposing counsel of bad faith.  Fuentes v. State, 664 S.W.2d 333, 335 (Tex. Crim. App. 1984).  Arguments that refer to defense counsel personally or impugn opposing counsel=s character run the risk of impropriety.  Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).  Appellant asserts that this comment was an improper and inflammatory jury argument used to manufacture a reason for the jury to be upset with the defense, and that it was necessarily an attack on defense counsel.  We disagree.  A prosecutor may properly question defensive theories.  The record suggests the prosecutor was not attacking defense counsel personally; instead, she was referring to a defensive trial strategy. See Coble v. State, 871 S.W.2d 192, 205 (Tex. Crim. App. 1993) (finding prosecutor=s statement that defense counsel argued something Aridiculous@ was proper because it was directed at defense counsel=s argument, not at defense counsel).

Even if we were to find that either or both of the prosecutor=s comments were improper, the trial court=s error in overruling appellant=s objections would not warrant reversal.  Mosley, 983 S.W.2d at 259.  Non‑constitutional error does not require reversal unless it affects a defendant=s substantial rights.  Tex. R. App. P. 44.2.  This occurs when the error has a substantial and injurious effect or influence upon the jury=s verdict.   Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005).  Substantial rights are not affected if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury, or had only a slight effect.  Guevara v. State, 152 S.W.3d 45, 53 (Tex. Crim. App. 2004).  In assessing the likely effect of improper jury argument in the punishment phase, we consider:  (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the same punishment being assessed without the misconduct.  Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

No curative measures were taken at trial because appellant=s objections were overruled.  Thus, the second factor weighs in appellant=s favor.  The first and third factors, however, weigh against a finding of harm.  The evidence shows appellant had ingested drugs and alcohol and had been agitated approximately six or seven hours before he took his stepfather=s rifles and killed two men with whom he was acquainted. He shot one man twelve times (eight times in the face and neck), reloading his weapon three times, and waiting several minutes between each shooting.  There is evidence appellant expressed no remorse for these murders and that he had thoughts of killing other people, including his mother and stepfather.  After balancing the appropriate factors, we find the prosecutor=s arguments, if improper, did not affect appellant=s substantial rights.  We overrule appellant=s second and third points of error.

Appellant=s conviction is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed April 20, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).   

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^[1]  Without an affirmative showing otherwise, we presume the trial court=s written judgment is correct.  Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh=g).