From Casetext: Smarter Legal Research

Bell v. State

Court of Criminal Appeals of Texas, Panel No. 3
Apr 29, 1981
614 S.W.2d 122 (Tex. Crim. App. 1981)

Summary

holding that the prosecutor's argument, which contrasted the ethical obligations of the two attorneys, was improper

Summary of this case from Scott v. State

Opinion

No. 65653.

January 28, 1981. Rehearing Denied April 29, 1981.

Appeal from the 177th Judicial District Court, Harris County, Max W. Boyer, Special Judge.

Stanley G. Schneider, Murry B. Cohen, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Larry P. Urquhart and William Harmon, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for State.

Before ROBERTS, ODOM and CLINTON, JJ.


OPINION


The appellant was found guilty of burglary of a vehicle. The trial court sentenced him to ten years' confinement.

The appellant complains of the following remarks made by the prosecuting attorney during jury argument at the guilt or innocence stage of the trial:

"MR. HARMON: * * *

Mr. Scheve (defendant's counsel) is a criminal defense lawyer. He doesn't have the same duty I do. He represents the criminal. His duty is to see that his client gets off even if it means putting on witnesses who are lying.

"MR. SCHEVE: Your Honor, we objet to that.

"THE COURT: I sustain the objection. That is not his duty. It is not his duty to put on any witness that he knows is lying.

"MR. SCHEVE: And furthermore, I would ask for a mistrial.

"THE COURT: I'll deny the mistrial. I have instructed the jury that that's not a correct statement of the law."

The effect of this argument was to instruct the jury that only prosecuting attorneys seek to uphold truth and justice whereas defense counsel have a license to use any means to mislead the jury. Lewis v. State, 529 S.W.2d 533 (Tex.Cr.App. 1975). By his argument the prosecutor was striking at the appellant over the shoulders of his counsel in an attempt to prejudice the jury against the appellant. Summers v. State, 147 Tex.Cr. 519, 182 S.W.2d 720 (1944). The argument was improper and the trial court's instruction to disregard was not sufficient to have removed the prejudice it created. Bray v. State, 478 S.W.2d 89 (Tex.Cr.App. 1972); Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App. 1974). The trial court erred in overruling the appellant's motion for mistrial.

The judgment is reversed and the cause is remanded.

ODOM, J., dissents.


Summaries of

Bell v. State

Court of Criminal Appeals of Texas, Panel No. 3
Apr 29, 1981
614 S.W.2d 122 (Tex. Crim. App. 1981)

holding that the prosecutor's argument, which contrasted the ethical obligations of the two attorneys, was improper

Summary of this case from Scott v. State

holding that the prosecutor's argument, which contrasted the ethical obligations of the two attorneys, was improper

Summary of this case from Scott v. State

deciding statement that defense counsel's duty is to get his client off, even if that means putting on witnesses who are lying, warranted mistrial

Summary of this case from Guy v. State

In Bell, supra, the State argued, "His [the defense attorney's] duty is to see that his client gets off even if it means putting on witnesses who are lying."

Summary of this case from Orona v. State

In Bell, supra at 123, the State argued: "His [the defense attorney's] duty is to see that his client gets off even if it means putting on witnesses who are lying."

Summary of this case from Gomez v. State

In Bell v. State, 614 S.W.2d 122, 123 (Tex.Crim.App. [Panel Op.] 1981), also cited by appellant, the prosecutor stated that the defendant's counsel, as a criminal defense lawyer, didn't have the same duty as a State's attorney.

Summary of this case from Sawyer v. State
Case details for

Bell v. State

Case Details

Full title:Marvin Ralph BELL, Appellant, v. The STATE of Texas, Appellee

Court:Court of Criminal Appeals of Texas, Panel No. 3

Date published: Apr 29, 1981

Citations

614 S.W.2d 122 (Tex. Crim. App. 1981)

Citing Cases

Wilson v. State

Id. Similarly, in Bell v. State, 614 S.W.2d 122 (Tex.Cr.App. 1981), the prosecutor argued the defense…

Orona v. State

To protect defendants from unwarranted attacks, this Court has held such argument to be reversible error even…