Denton v. State ( 1996 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was convicted of murder. The Fort Worth Court of Appeals reversed the conviction and remanded the cause for a new trial. Denton v. State, 896 S.W.2d 580, 586 (Tex.App.—Fort Worth 1995). The State filed a petition for discretionary review which raised three questions for review, all of which involve the Court of Appeals’ treatment of appellant’s claim relating to the State’s jury arguments at guilt-innocence. We grant ground one of the State’s petition for discretionary review and remand the cause to the Second Court of Appeals to conduct another Tex.R.App.Proc. 81(b)(2) harm analysis.¹

The State alleged appellant intentionally and knowingly killed the victim. Appellant claimed the killing was accidental. During closing arguments, the prosecutor made two arguments which were unsupported by the evidence and which, according to the Court of Appeals, “if believed, would conclusively show the shooting was not accidental.” Den-ton, 896 S.W.2d at 583. The trial court overruled appellant’s objection 'to the first argument. The trial court sustained appellant’s objection to the second argument and instructed the jury to disregard it. Appellant did not move for a mistrial.

The Court of Appeals decided “the cumulative effect of the prosecutors’ repeated references to evidence outside the record on an issue vital to the defense could not have been cured by an instruction to disregard in the second instance, particularly where defense counsel’s objection to the first instance where the offending remark was made was overruled by the trial court.” Denton, 896 S.W.2d at 585. After discussing the Harris v. State factors, the Court of Appeals concluded it could not determine beyond a reasonable doubt that the jurors were not swayed by the State’s argument. See Harris v. State, 790 S.W.2d 568, 584-89 (Tex.Cr.App.1989). In conducting its harm analysis, the Court of Appeals stated it was “not persuaded that had the errors not occurred, every rational juror would necessarily reject the defense and return a verdict of ‘guilty.’ ” Denton, 896 S.W.2d at 586. In its petition for discretionary review, the State particularly takes issue with that statement and claims the Court of Appeals misapplied Tex.R.App. Proc. 81(b)(2).

This Court applies a deferential standard in reviewing intermediate appellate courts’ Rule 81(b)(2) determinations. This Court determines whether the intermediate appellate courts applied the correct legal standard and considered the relevant factors. See Harris, 790 S.W.2d at 584-89. When the intermediate appellate courts apply the correct legal standard and consider the relevant factors, this Court generally does not substitute its judgment for theirs on Rule 81(b)(2) issues. In this case, we hold the Court of Appeals misapplied the legal standard and also erred by failing to consider other evidence in the record bearing on the issue of appellant’s intent.

The applicable legal standard is “whether, in light of the record as a whole, there is a reasonable possibility the argumentes] complained of might have contributed to appellant’s conviction or punishment.” Orona v. State, 791 S.W.2d 125, 128 (Tex.Cr.App.1990). The Court of Appeals’ statement that it was “not persuaded that had the errors not occurred, every rational juror would necessarily reject the defense and return a verdict of ‘guilty’ ” is not consistent with this standard.

In addition, the Court of Appeals seemed to rely almost entirely on the fact the erroneous jury arguments concerned “a critical issue in the case.” Denton, 896 S.W.2d at 586. However, the Court of Appeals failed to consider other relevant factors such as the overwhelming evidence of guilt on the issue of appellant’s intent and its “interaction with the other evidence.” See Harris, 790 S.W.2d at 586 (the impact of the error cannot be properly evaluated without examining its interaction with the other evidence) and at 588 (overwhelming evidence can be a factor to be considered in applying Rule 81(b)(2)) and at 604 (appellate court should calculate as best it can probable impact of the error on jurors in light of other evidence; “overwhelming evidence” may or may not play a role, depending on the particular error and the facts of the case and evidence adduced) (Clinton, j., dissenting on motion for rehearing).

For example, not long before the offense occurred, appellant called the victim’s wife and told her that he caught the victim with appellant’s wife and that appellant was going to kill the victim. Appellant had been to his wife’s home, left, and returned to his wife’s home with a shotgun where he killed the victim. The evidence further shows the victim died from a shotgun wound to the chest. This evidence was undisputed. At trial, appellant testified the shotgun “went off’ when he and his wife were struggling over it and “she jerked it down.” Denton, 896 S.W.2d at 583 (Emphasis Supplied). Thus, appellant claimed the victim was accidentally shot in the chest while the shotgun was pointed down.

Based on the foregoing, we vacate the judgment of the Second Court of Appeals and remand the cause to that Court for further proceedings consistent with this opinion.

CLINTON, J., dissents.

1 . We dismiss grounds two and three of the State's petition for discretionary review without prejudice.