Dekeithalon Montrayl B. v. St.

Full title: DEKEITHALON MONTRAYL BANKS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 16, 2003

No. 05-02-01826-CR, No. 05-02-01827-CR, No. 05-02-01828-CR (Tex. App. Oct. 16, 2003)

Opinion

No. 05-02-01826-CR, No. 05-02-01827-CR, No. 05-02-01828-CR

Opinion Filed October 16, 2003 Do Not Publish. Tex.R.App.P. 47

On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-71780-UW; F02-72001-UW; and F02-72002-UW. AFFIRMED

Before Justices MOSELEY, RICHTER, and FRANCIS.

OPINION

Opinion By MOLLY FRANCIS, Justice.

Dekeithalon Montrayl Banks pleaded guilty to three charges of aggravated assault in connection with a highway shooting incident that injured one person and threatened two others. The jury assessed punishment at ten years in prison. In three points of error, appellant contends the trial court abused its discretion by admitting certain evidence and overruling his objection to the State's argument at punishment. We affirm. In his first and second points of error, appellant complains the trial court erred in admitting clothing and a letter in violation of a discovery order. Before punishment evidence began, appellant presented and the trial judge granted appellant's motion for discovery. The motion sought discovery of

any statement(s) made by the Defendants to the Police[,] District Attorney or any of his employees, and law enforcement officials, or any private citizen within the knowledge of the Police or District Attorney or any of his employees, whether under arrest or not or whether written or oral, which might arguably be material to the guilt or innocence of this Defendant[;]

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any papers, objects or real evidence that is in possession of the police or District Attorney's office which may arguable [sic] be material to the guilt or innocence of the Defendant.

(Emphasis added.) At trial, the trial court admitted, over appellant's objection, bloody clothing worn by the shooting victim and a letter written by appellant while in jail to a friend. Appellant argues both items were covered by his motion. We disagree. First, with respect to the bloody clothes, the discovery motion only sought physical evidence "in the possession of the police or District Attorney's office." The victim testified she had remained in possession of the clothing since the shooting. Because the clothing was not in the possession of either the police of district attorney's office, it was not covered by the motion. The trial court did not err in admitting the clothing. As for the letter written by appellant while in jail, it is not evidence that is even arguably material to appellant's guilt or innocence. The letter contained the following postscript: "Tell [complainant] to holla [sic] at me to write soon it's important." This sentence does not bear on appellant's guilt or innocence. The letter was offered at punishment to impeach appellant's testimony that he had not attempted to contact the victims since the offense. We conclude the letter was not evidence material to appellant's guilt or innocence. Accordingly, the letter was not subject to the discovery order, and the trial court did not err in admitting it. We overrule the first and second points of error. In his third point of error, appellant complains the trial court erred in overruling his objection to the following highlighted portion of the prosecutor's argument:

Now no one's asking you to nail his hide to the wall. Obviously, no one's asking you to give him life or anything else, but we're asking you to think about this in terms of what it is. It's a shooting that could have been a lot worse, for no apparent reason.

Is that the kind of guy you want to put on probation and put back on the street? Is that the kind of guy who you want to worry about pissing off next time you're driving down the highway? You know what he looks like; you can avoid him, but the rest of the community doesn't.

Appellant then stated, "Object to the community," which the trial court overruled. On appeal, appellant contends the argument constituted an improper appeal to community expectations. Initially, we question whether appellant's trial objection is (1) specific enough to apprise the trial court of his complaint and (2) is the same complaint brought on appeal. Regardless, we have reviewed the argument and conclude it was not improper. Simply mentioning the community is not necessarily improper during jury argument. Rivera v. State, 82 S.W.3d 64, 69 (Tex.App.-San Antonio 2002, pet. ref'd). But the prosecutor may not argue that the community or any particular segment of the community demands or expects a particular punishment. Murray v. State, 861 S.W.2d 47, 54 (Tex.App.-Texarkana 1993, pet. ref'd). A prosecutor may argue the relationship between the jury's verdict and the deterrence of crime in general, or this specific type of crime, as a plea for law enforcement. See id. The argument in this case does not encourage the jury to believe that the community or any particular part of the community expects or demands a particular punishment. Rather, it argues that probation is not appropriate, given the facts of this case, and the purpose of law enforcement would be served by imprisoning appellant. We overrule the third point of error. We affirm the trial court's judgments.