Beltran v. State (2003)
In Beltran v. State, 99 S.W.3d 807, 811 (Tex. App.--Houston 14th Dist. 2003, pet. ref'd) the Fourteenth Court of Appeals has held that there is no fundamental error when a prosecutor improperly states his personal opinion regarding the guilt of the defendant, the defendant does not object, and other circumstances negate the harm to the defendant. Beltran, 99 S.W.3d at 811-12.
In Beltran, the following exchange occurred between the attorneys and a venireperson:
VENIREPERSON: I have a follow up question. If the investigation over the last thirteen years has shown that the man was not guilty would the indictment be eliminated? Would the indictment be dropped?
STATE: If I believed the man was not guilty I wouldn't be here. My job is to see that justice is done and I wouldn't be sitting here.
DEFENSE COUNSEL: And I can tell you that if I believed he did this and the State could prove it beyond a reasonable doubt I wouldn't be here, either. Id. at 811.
The defendant did not object.
On appeal, the Fourteenth Court of Appeals found no fundamental error. "We agree the prosecutor improperly stated her personal opinion. Nonetheless, appellant cites no cases in which similar voir dire statements were held to be fundamental error. Moreover, defense counsel's immediate response stating his own opinion negated any harm to appellant." Id. at 811-12.
Accordingly, the Court upheld the conviction. Id. at 812.