Opinion
NO. 09-11-00178-CR
05-16-2012
HERMAN BENARD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 95033
MEMORANDUM OPINION
A jury found Herman Benard guilty of murder and assessed punishment at forty-eight years of imprisonment. Benard fatally shot April King while she was on Benard's front porch. Benard raises six issues on appeal.
In Benard's first issue, he argues the trial court erred in allowing a witness to speculate. Specifically, he complains of the following testimony of what occurred prior to the shooting:
[Prosecutor:] And he was arguing with -- he and April were arguing; is that --Benard asserts that he was "harmed by these bald assertions of fact that even the witness said was merely a guess[,]" and that "[s]peculation is not admissible in order to persuade a jury to convict [him] of the offense of murder." Benard argues that because the issue of intent was "hotly contested[,]" this "improper opinion testimony would only serve to bolster the position of the State . . . in order to persuade the jury to render a verdict of guilt." He further argues that a witness is not permitted to render an opinion on an ultimate fact which should be determined by the fact finder from the evidence presented at trial.
[Kelly:] Yes, sir.
[Prosecutor:] -- a fair statement to make? Could you tell what they were arguing about? Could you make out what it was about?
[Kelly:] Well, I guess he was supposed to give her some money.
[Prosecutor:] Okay. Do you know what for?
[Defense Counsel]: Your Honor, we're going to object. She said she was guessing. Calls for speculation.
The Court: I'm going to overrule it.
[Prosecutor:] Did he -- did you know what she was wanting the money for?
[Kelly:] Her daughter was graduating in a year.
[Prosecutor:] Was he supposed to give her some money or something?
[Kelly:] Yes, sir.
[Prosecutor:] Okay. So, the argue- -- how were they arguing?
[Kelly:] They was arguing, and there was some hitting -- she was hitting him.
An appellate court reviews a trial court's ruling on the admissibility of evidence under an abuse of discretion standard, and does not reverse a trial court's ruling unless the ruling falls outside the zone of reasonable disagreement. See Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). Rule 602 of the Texas Rules of Evidence states that witnesses "may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Tex. R. Evid. 602.
Kelly's uncertainty seems to have been about whether Benard owed King money, not whether they were arguing about the debt. Kelly clarified that she saw and heard the two arguing about whether Benard was supposed to give King some money for her daughter, who was graduating in a year. Kelly testified about her objective perception of what happened. See Tex. R. Evid. 602, 701; Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App. 1997). The trial court did not abuse its discretion in overruling the objection. See Burden, 55 S.W.3d at 615. Issue one is overruled.
In issues two, three, and four, Benard claims the prosecutor engaged in improper argument. Generally, proper jury argument falls within one of four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).
In issue two, Benard argues the trial court erred in allowing the prosecutor to strike at him "over the shoulder" of counsel during closing argument. Benard complains of the prosecutor's comment to the jury to "[b]e careful and don't let anybody suggest to you that we have to prove more beyond a reasonable doubt than what has been charged in the indictment. [Defense counsel] has already tried to lay that trap for you[.]" Benard objected to the argument and the trial court overruled the objection.
A prosecutor risks improperly striking at a defendant "over the shoulder" of counsel when the argument refers to defense counsel personally and when the argument explicitly impugns defense counsel's character. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1988) (op. on reh'g). The prohibition protects the defendant from improper prosecutorial character attacks on defense counsel. Davis v. State, 268 S.W.3d 683, 713 (Tex. App.--Fort Worth 2009, pet. ref'd) (citing Coble v. State, 871 S.W.2d 192, 205 (Tex. Crim. App. 1993)).
The argument refers to defense counsel personally and suggests that defense counsel wanted to divert the jury's attention from the truth. See Mosley, 983 S.W.2d at 258-59. Assuming that the trial court should have sustained Benard's objection, we must determine whether the error warrants reversal. In applying Rule 44.2(b) of the Texas Rules of Appellate Procedure to determine whether the error is harmless, the Court of Criminal Appeals has considered three factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). See Mosley, 983 S.W.2d at 259 (citing United States v. Millar, 79 F.3d 338, 343 (2nd Cir. 1996); United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994)); see also Tex. R. App. P. 44.2(b).
The comment in this case did not directly accuse defense counsel of lying, did not suggest any evidence was manufactured, and did not inject new facts into the record. See Mosley, 983 S.W.2d at 260. As for the second factor, no curative action was taken. The third factor weighs in favor of the State. Several witnesses testified Benard and King were arguing the day of the shooting. One witness saw Benard aim the gun at King and cock it before he shot her. Another witness saw Benard as he shot through the glass at King. Both witnesses heard Benard threaten King just prior to the shooting that if she did not leave he would kill her. The error was harmless under the circumstances. Issue two is overruled.
Benard maintains that reversible error occurred when the trial court allowed the prosecutor to make the following argument: "And be careful, too, of this idea that Herman Benard, he's a great guy, . . . and April King's bad, so, I guess she deserved to be murdered[.]" Benard objected that "[t]hat has in no way ever been the position of the defense, and that's striking at the defendant [and] [i]t's improper argument." The trial court overruled the objection. The prosecutor's argument was in response to defense counsel's earlier argument that drugs were present in King's blood and that she had been drinking, and that Benard was a good renter, had a nicely-kept house, and was "[a] single parent with custody of his children, working, passed all his drug screens at work -- in fact, doing two jobs." See Brown, 270 S.W.3d at 570. Benard also contends the trial court committed reversible error when it allowed the prosecutor to argue that "it should make you angry that Herman Benard would do something like this in front of his children and now make his children come into this courtroom . . . and testify on his behalf, lie for him[.]" The trial court overruled Benard's objections that this argument was improper. The trial testimony of Benard's two sons conflicted with statements they made to law enforcement immediately after the shooting. See id. The alleged errors do not justify reversal of the judgment. See Tex. R. App. P. 44.2. Issues three and four are overruled.
In issues five and six, Benard argues the trial court erred in failing to conduct a hearing on Benard's motion for new trial and in failing to grant the motion. Benard timely filed a motion for new trial which requested a hearing and included a sworn affidavit from an inmate. The motion for new trial was overruled by operation of law.
The motion stated that defense counsel suspected that Benard was drugged and committed the offense while involuntarily intoxicated and that attempts to develop those facts through a potential witness were unsuccessful. The motion states that the attached affidavit provides facts and substantiates Benard's theory that he was involuntarily exposed to crack cocaine that resulted in the behavior that caused King's death. The affiant states that he first met Benard through Benard's cousin, Rideaux, who took the affiant to Benard's home on one occasion. The affiant knew Rideaux because the two smoked crack cocaine. The affiant states that on the day of the shooting, King and Rideaux were smoking crack at the affiant's apartment near Benard's house. When Rideaux needed more money for drugs, he and King discussed a plan to get Benard hooked on crack by lacing marijuana with crack so that Benard would then be a regular user and supply their habit. The affiant heard them plotting from the other room, and the affiant stated that King and Rideaux left the affiant's house with the intention of carrying out the plot. The affiant learned later that night that King had been shot. About six years later, the affiant recognized Benard as a fellow inmate and related these facts to Benard.
The grant or denial of a motion for new trial rests within the trial court's discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). A reviewing court cannot substitute its judgment for that of the trial court, but must instead decide whether the trial court's decision was arbitrary or unreasonable. Id. "A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Tex. Code Crim. Proc. Ann. art. 40.001 (West 2006). In order to meet the statutory requirement of materiality set out in article 40.001, the accused must satisfy the following four-part test: (1) the newly discovered evidence was unknown or unavailable to the movant at the time of trial; (2) the movant's failure to discover or obtain the evidence was not due to lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result on another trial. Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002) (footnote omitted).
Benard testified he had never used drugs and that he would not have asked for a joint that day because he did not smoke marijuana. The jury heard testimony from one of Benard's sons that the night of the shooting he told one detective that his father was mad because Rideaux or King had put crack in a joint and tried to get him to smoke it. Benard's other son testified that his father, Rideaux, King, and Larry Lewis were all drinking at the house and that his father asked for a joint and later got upset. The jury nevertheless found Benard guilty of murder. Benard has not shown that this "new evidence" is not cumulative, is probably true, and would probably cause a different result on another trial. See id. at 36-37. Issues five and six are overruled. The trial court's judgment is affirmed.
AFFIRMED.
DAVID GAULTNEY
Justice
Do Not Publish Before Gaultney, Kreger, and Horton, JJ.