Simons v. State

STEPHENS, Justice.

Steven Earl Simons was convicted of driving while intoxicated and was sentenced to 60 days in jail, probated for 24 months, and assessed a $500 fine. In his sole ground of error, he contends that the trial court erred in overruling his motion for mistrial because the prosecutor’s argument injected unsworn testimony which bolstered the previous testimony of two police officers. We agree that the prosecutor’s argument was improper and can never be condoned; however, in this instance we find that the error was cured by the court’s instructions and affirm.

During final argument at the guilt-innocence phase of trial, the following exchange took place:

(Prosecutor): I submit to you if those officers had wanted to lie, had wanted to exaggerate, they could have told you that he was weaving all over the road the whole time. They could have told you he ran the stopi light, he didn’t use his blinkers. They were telling you the truth about the way he was driving.

(Defense Counsel): Your Honor, I will have to object to the prosecutor attempting to vouch for the truthfulness of the State’s witnesses.

THE COURT: Sustain your objection. (Defense Counsel): I will ask the Court to instruct the jury to disregard that. THE COURT: Disregard it, Ladies and Gentlemen.

(Defense Counsel): Your Honor, I don’t think that cures her attempt to vouch for veracity of her officers since this is a case involving only two officers and I would respectfully ask for a mistrial.

THE COURT: Deny your motion. (Prosecutor): When you compare the testimony of two police officers, I submit to you their testimony was very credible and they had no motive to lie to you. (Defense Counsel): I’ll have to object to that. That’s vouching for the credibility of the witnesses in different words.

THE COURT: Sustain your objection. (Defense Counsel): I will ask the Court to instruct the jury to disregard that.

THE COURT: Disregard it, Ladies and Gentlemen.

(Defense Counsel): Your Honor, I don’t think that cures the harm done and would ask the Court for a mistrial.

THE COURT: Deny your motion for mistrial.

Thus, the record shows that the prosecutor purposely repeated the error after an objection had been sustained by the court. Such prosecutorial misconduct is improper, yet the question before us is whether such improper conduct requires reversal. We conclude that it does not.

The Court of Criminal Appeals has held many times that it is improper for a prosecutor to bolster the truthfulness of his witnesses. Menefee v. State, 614 S.W.2d 167 (Tex.Cr.App.1981) (en banc); Woodard v. State, 368 S.W.2d 623 (Tex.Cr.App.1963); Puckett v. State, 168 Tex.Cr.R. 615, 330 S.W.2d 465 (1959); Brown v. State, 165 Tex.Cr.R. 535, 309 S.W.2d 452 (1958); Caka v. State, 165 Tex.Cr.R. 35, 302 S.W.2d 939 (1957); Womack v. State, 160 Tex.Cr.R. 237, 268 S.W.2d 140 (1954). The appellant’s reliance on this line of cases, however, fails to take into account a crucial distinction in the present case. In each of the cases cited by the appellant, the defendant’s objection was overruled and no instruction to disregard was given to the jury. Where, as here, an objection is timely made and sustained, and the jury has been instructed to disregard, it has generally been held that an improper jury argument requires reversal only if it is so inflammatory that its prejudicial effect cannot be reasonably removed from the minds of the jurors by the court’s instruction. Rudd v. State, 616 S.W.2d 623 (Tex.Cr.App.1981); Thompson v. State, 612 S.W.2d 925 (Tex.Cr.App.1981).

The facts of this case are overwhelming in showing that the appellant was guilty as charged, diluting the effect, if any, that the prosecutor’s improper argument may have had at the guilt-innocence stage. During the punishment phase of trial, it was shown that appellant had two prior convictions for driving while intoxicated, yet the court assessed punishment at only 60 days in jail, probated, and a $500 fine. Under the facts of this case, we hold that, although the prosecutor’s repetition of the objectionable argument was improper, it was cured by the court’s instruction to disregard, and conclude that the error, if any, was harmless.

Affirmed.