Pierson v. State , 1982 Tex. App. LEXIS 5050 ( 1982 )

MURPHY, Justice,

dissenting.

I respectfully dissent from the majority decision. My concern with the disposition of this case is primarily founded upon appellant’s assertions in regard to prosecutional misconduct during jury argument and denial of his motion for new trial based upon newly discovered evidence.

In jury argument, the district attorney repeatedly emphasized appellant’s having owned a .22 pistol, that he had been seen “with a big gun” and the fact that “obviously” no .22 firearm was found by police at his residence after the event at issue. I disagree with the majority that the cumulative effect of this argument was not a wilful and calculated effort to make the jury believe appellant killed the deceased with a .22 caliber gun which he clandestinely disposed of prior to the police arrival at the scene. In fact, the obvious discrepancies in the witnesses’ description of the purported murder weapon, the lack of proof of appellant’s adapting his other guns for the purpose of using .22 caliber bullets, and the pathologist’s surmise that the multilated remains of the bullet “were consistent with” a .22 caliber bullet should not be viewed as an exclusion of other reasonable hypotheses of guilt. See, Nathan v. State, 611 S.W.2d 69 (Tex.Cr.App.1981). The prosecutor did not point to or even attempt to disclose the discrepancies between his alleged “murder weapon theory” and appellant’s purported .22 gun. I think this omission and the cumulative effect of the prosecutor’s inferences and insinuations in regard to the .22 firearm materially affected the determination of appellant’s guilt and hence the outcome of the trial, which resulted in a denial of a fair trial as outlined in United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct. 2392, 2401-2402, 49 L.Ed.2d 342 (1976). See also, Green v. State, 587 S.W.2d 167 (Tex.Cr.App.1979).

The trial court’s denial of a new trial based upon newly discovered evidence causes me the same concerns I discussed in my dissenting opinion in Etter v. State, 629 S.W.2d 839 (Tex.App.—Houston [14th Dist.] 1982). The majority once again places an unsurmountable burden upon an appellant to prove exercise of diligence under the Whitmore test. Whitmore v. State, 570 S.W.2d 889 (Tex.Cr.App.1978). The majority points to appellant’s failure to prove he no longer owned the gun as a lack of diligence justifying the denial of a new trial. The record reflects, however, that the state introduced its evidence in regard to the .22 firearm at the end of the trial and both sides rested immediately afterward. The prosecutor’s jury argument the next day was composed in great part of the insinuations described above based upon that evidence. There was no way, therefore, for appellant to ascertain the source of the state’s evidence until the end of his trial. The state of the record and the fact that after the trial appellant had ascertained that the Houston Police Department had destroyed that firearm prior to the events at issue is new evidence which would have refuted the prosecutor’s insinuations, would have supported a new trial under Whitmore and would have contradicted the prosecutor’s “murder weapon theory.” Moreover, the refutation of that theory would certainly have had a material effect upon the outcome of the trial. See Etter, supra, at 841; Whitmore, supra, at 896. Cf., Van Byrd v. State, 605 S.W.2d 265, 267 (Tex.Cr.App.1980). In light of the unfair effect of the prosecutor’s argument and the fact that there was newly discovered evidence perhaps critical to the outcome of the trial, I find the trial court’s denial of a new trial was an abuse of discretion and would reverse and remand this cause for a new trial.