Nunfio v. State , 1990 Tex. App. LEXIS 560 ( 1990 )

OPINION

HUGHES, Justice.

A jury convicted appellant of aggravated sexual assault, and sentenced him to 65 years imprisonment.

The complainant, a nun, testified that she was asleep in her room when a noise awoke her. She saw a man with a knife standing in her room. The man proceeded to beat her, and then raped her several times. When the man fell asleep, the complainant escaped and called the police, who found appellant sleeping in the complainant’s bed.

In his first point of error, appellant contends the trial court erred in preventing appellant’s counsel from conducting voir dire regarding the complaining witness’ occupation. Prior to voir dire, the trial court granted the State’s motion in limine regarding the fact the complainant is a nun, and denied appellant’s request to use a hypothetical fact situation involving a nun.

Appellant contends that, pursuant to Tex. R.App.P. 52, he properly preserved error because there was an objection by the State and a ruling by the trial court. Rule 52 provides that in order for the appellate court to review excluded evidence, the record must reflect an offer of the evidence, the objection made, and the ruling by the court. When this procedure is followed, no further offer need be made.

Appellant has not properly preserved this point of error for review. The Court of Criminal Appeals has ruled that the grant or denial of a motion in limine is not sufficient to preserve error. Romo v. State, 577 S.W.2d 251, 252 (Tex.Crim.App.1979); see also Rushton v. State, 695 S.W.2d 591, 593 (Tex.App.—Corpus Christi 1985, no pet.). Because a judge is often not in a position to decide on the admissibility of evidence prior to the beginning of trial, Romo, 577 S.W.2d at 252, the specific activity to which the motion is directed must actually be attempted and either permitted or prohibited by the court, and a proper record thereof made, before there is anything for the appellate court to review. See Ransom v. State, 630 S.W.2d 904 (Tex.App.—Amarillo 1982, no pet.), where Ransom stated that her voir dire examination had been improperly restricted by the trial court when it granted a motion in limine presented by the State. The court overruled Ransom’s argument because it found no restriction on her voir dire examination in the area that was the subject of the motion. Ransom, 630 S.W.2d at 907.

In cases in which an appellant challenges the jury voir dire process, as distinguished from appeals concerning the trial judge’s failure to grant a specific challenge for cause, there is no requirement that appellant show harm. Smith v. State, 513 S.W.2d 823, 926 (Tex.Crim.App.1974). The proper standard of review in such cases is abuse of discretion. The standard focuses on whether a question proffered by counsel and refused by the trial judge was proper. If the disallowed question was proper, harm is presumed because a defendant has been denied the intelligent use of his peremptory strikes. Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App.1985).

Because the standard of review is abuse of discretion, it is essential that the record present this Court with a question that the trial judge has not allowed to be answered. Cockrum v. State, 758 S.W.2d 577, 584 (Tex.Crim.App.1988). The Cockrum court further held that

If counsel refrains, for whatever reason, from asking a question, the judge is denied the opportunity to make a ruling. Thus, we are unable to review the correctness of a ruling which was never made. Jones v. State, 596 S.W.2d 134, 137 (Tex.Crim.App.1980); Johnson v. State, 447 S.W.2d 927, 930 (Tex.Crim.App.1969). For appellant to have a cognizable point of error, the record must reflect a ruling which appellant wishes to challenge. See Tex.R.App.P. 52(a).

Cockrum, 758 S.W.2d at 584. (Emphasis added.)

We have reviewed the entire voir dire examination and can find no instance where appellant attempted to specifically discuss complainant’s occupation and was denied the opportunity to do so. Additionally, appellant did ask the venire panel, without objection, if anyone had attended Catholic schools, whether they had been taught by nuns, and whether they could wait to pass judgment on the credibility of a witness until after their testimony is given regardless of the witness’ occupation. Because the record does not reflect any refused question concerning complainant’s occupation, we cannot review that which does not exist — the trial judge’s exercise of discretion. Cockrum, 758 S.W.2d at 585. Appellant’s first point of error is overruled.

Appellant’s second, third and fourth points of error concern improper prosecuto-rial argument during the punishment phase of the trial. Appellant argues in his second point of error that the trial court erred in allowing the prosecutor to apologize for the range of punishment, asserting the argument was improper, inflammatory, and outside of the record. In his third and fourth points of error, appellant contends the court erred in allowing the prosecutor to argue that the legislature made a mistake in not providing a greater punishment for the offense, and in allowing the prosecutor to present the same argument for a second time.

During the punishment phase of the trial, the State argued:

MR. ANDERSON (counsel for the State): One of the mistakes made by our legislature is that we’re going—

MR. HERNANDEZ: I’m going to object to the State getting into the rationale of the statutes made by the legislature because it’s outside the record.

THE COURT: Sustained.

MR. ANDERSON: I apologize to you that there is no provision for punishment greater than life and $10,000 in this case.

MR. HERNANDEZ: Objection. That’s inflammatory and prejudicial and outside the record.

THE COURT: Overruled.

MR. ANDERSON: I apologize to you that that’s all I can ask you for. I apologize to Nanette Navarre that that's all I can ask you for. That’s a mistake, but that’s a mistake we’ve got to live with today.

MR. HERNANDEZ: I object to mentioning about the mistake again.

THE COURT: Overruled.

Appellant argues that these remarks constitute reversible error because they referred to matters outside of the record, and the purpose of the arguments was to encourage the jury to assess a punishment greater than that provided for by the legislature.

The State suggests that the argument accurately summarized and made reasonable inferences, from the evidence. The general argument of the prosecutor was that appellant committed a heinous crime, and life imprisonment and a fine were not sufficient to punish him.

The areas of permissible jury argument encompass the following four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Albiar v. State, 739 S.W.2d 360, 362 (Tex.Crim.App.1987).

In a similar case, the prosecutor argued to the jury that the appropriate punishment in the case was not in the charge, and asked the jury to assess the maximum punishment available. Coffey v. State, 744 S.W.2d 235, 240 (Tex.App.— Houston [1st Dist.] 1987, pet. granted). On appeal, appellant argued that the argument amounted to an erroneous instruction to the jury that the death penalty was the only appropriate punishment. This Court held that the argument did not constitute reversible error, reasoning that the prosecutor’s allusions to a punishment not in the charge could not have misled the jury into a mistaken belief that they could assess a punishment not authorized by the law, nor did the argument urge the jury to disregard the law. Id.

The argument made in this case, if erroneous, does not rise to the level of reversible error. See Coffey, 744 S.W.2d at 240. The jury could only assess the range of punishment provided by law. Even if improper argument is made, such error is not reversible, unless, viewing the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts, harmful to the accused, into the trial. Franklin v. State, 693 S.W.2d 420, 429 (Tex.Crim.App.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986). We do not find that to be the case in this instance. Appellant’s second, third and fourth points of error are overruled.

Appellant argues in his fifth point of error that the evidence is insufficient to support his conviction for aggravated sexual assault because the evidence fails to show the knife was used as a deadly weapon.

In reviewing the sufficiency of the evidence, the appellate court must determine, after viewing the evidence in the light most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, — U.S. -, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988).

A deadly weapon is defined in the Texas Penal Code as follows:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Tex.Penal Code Ann. § 1.07(a)(ll) (Vernon 1988).

While a knife is not a deadly weapon per se, Williams v. State, 575 S.W.2d 30, 32 (Tex.Crim.App.1979), the State can prove a particular knife to be a deadly weapon by showing its size, shape and sharpness, the manner of its use or intended use, and its capacity to produce death or serious bodily injury. Davidson v. State, 602 S.W.2d 272, 273 (Tex.Crim.App.1980); Denham v. State, 574 S.W.2d 129, 130 (Tex.Crim.App.1978).

Appellant relies on Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App.1983), to support his contention that the evidence is insufficient to support the conviction. In Blain, the defendant was convicted of aggravated robbery based on his display of a knife in the robbery of a convenience store. Even though the victim stated he was afraid he might be stabbed, Blain made no attempt to stab or cut the victim. The knife was not introduced at trial, and there was no testimony to establish the size of the blade, appearance of sharpness, or threatening motions with the knife by Blain. The court held there was insufficient evidence to show that Blain used or exhibited a deadly weapon, noting that the victim’s testimony did not establish fear of serious bodily injury. Blain, 647 S.W.2d at 293-94.

In this case, the record reflects greater evidence than adduced in Blain to show that the knives were indeed used as deadly weapons.

The complainant testified that appellant had a knife in his hand when she first awoke and found him in her room. A struggle followed, and appellant repeatedly hit the complainant, pushed her onto the bed, and then threw her on the floor. The complainant testified she was in fear of serious bodily injury. She stated that appellant held a knife in her face when he first entered her room, and that she cut her finger when she wrenched the knife from his hand. At one point, between the rapes and ongoing violence, appellant went to the kitchen and got another knife. The complainant testified that she was frightened by the knives, and she thought that if she did not get the knives away from appellant, he would kill her. Those fears were legitimized by appellant’s brutal attack on her.

Sergeant Yarborough, an officer with the Houston Police Department sex crimes division, testified that both knives were capable of causing death or serious bodily injury. Both knives were admitted into evidence, along with photographs of the knives. From the photographs, both knives appear to be kitchen knives with lengthy, narrow blades, pointed tips, and sharp edges. The knives and the photographs were observed by the jury, which was able to see the size of the blades and their sharpness.

We find the evidence sufficient to show appellant used a deadly weapon. Appellant’s fifth point of error is overruled.

The judgment of the trial court is affirmed.

EVANS, C.J., concurs.

COHEN, J., dissents.