Opinion
No. 05-02-01810-CR.
Opinion Issued October 10, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-33785-PU. Affirmed.
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
OPINION
Richard Keith Gaston appeals his conviction for aggravated assault. After finding appellant guilty and making an affirmative finding that he used or exhibited a deadly weapon during commission of the offense, the jury assessed punishment, enhanced by a prior felony conviction, at ninety-nine years' confinement and a $10,000 fine. In two points of error, appellant contends the trial judge erred in overruling his objections to improper voir dire and closing argument. We affirm the trial court's judgment. In his first point of error, appellant contends the trial judge erred in overruling his objection to the prosecutor's statements during closing. Appellant claims the prosecutor "presented argument that was outside the evidence." During closing, the prosecutor argued:
Ladies and gentlemen, the evidence we have from the punishment phase of the trial speaks for itself. Murder. He's a convicted murderer. I don't care if it was from 1976, 1956, 1966. What you can go back there and think about and talk about is in the 30-year sentence he received for murder and the 15-year sentence he received for attempted murder this man didn't learn a thing.
He didn't learn a single thing because he was convicted in 1976 of murder, got 30 years in the penitentiary and here we are in the year 2001 and he very closely — came very close to killing somebody again.Appellant responded, "Objection; facts outside the record." The trial judge overruled the objection which appellant assigns as error. We disagree. Proper jury argument includes: (i) summation of evidence presented at trial, (ii) reasonable deduction drawn from that evidence, (iii) answer to the opposing counsel's argument, or (iv) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000); McFarland v. State, 845 S.W.2d 824, 844 (Tex.Crim.App. 1992). To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case. Jackson, 17 S.W.3d at 673-74; Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). On appeal, appellant argues the record is "devoid of evidence that the wounds were such that the victim's life was in danger." The evidence at trial shows the victim, Tammy Tooley, knew appellant for about eight months. On the evening of August 22, 2001, she stopped by appellant's room at the Gold Inn for a "couple of beers." After she walked in, appellant locked the door and demanded she perform oral sex. When she refused, he got a razor blade from the night stand and threatened to "cut her throat." He put the blade to her neck and again threatened, "he was going to cut [her] throat." Tooley managed to get out of the room. She ran down the hall, saying, "He's going to kill me. He's going to kill me. Get him. Stop him." Appellant chased her into another room, slammed her on the bed, and straddled her. Another resident pulled him off, and Tooley ran to a friend's car. She had two cuts to her neck and was bleeding. Her friend drove her to the police station. Tooley had blood running down her shirt. The police took photos and called an ambulance. Approximately ten minutes later, an ambulance transported her to the hospital where they "did something on the inside where the jugular was and then they had to sew the outside up." Tooley stayed in the hospital overnight and had stitches in her neck for two to three weeks. In light of this evidence, we conclude the prosecutor's statement, that appellant "came very close to killing somebody again," was a reasonable deduction drawn from the evidence, and as such, was proper jury argument. We overrule appellant's first point of error. In his second point of error, appellant claims the trial judge erred in overruling his objection to the prosecutor's question during voir dire. Appellant argues the question improperly sought a commitment from the venire panel members and, therefore, was improper. During voir dire, the prosecutor made the following statement to the venire panel:
I want to talk to you a little bit about the credibility of a victim in a case if that victim you heard led a lifestyle that was different from what you believe in. The example I was to use is let's say that the victim is an aggravated assault case was a prostitute, for example.
Is there anybody that feels, "I strongly disagree," as I assume all of us would, "with somebody making their way of life as a prostitute and because of that reason I just don't think I would believe what she says"?Appellant objected to the line of questioning because "[i]'s committing the jury to a set of facts." The judge overruled the objection which appellant assigns as error. We disagree. The question was not a commitment question, and therefore, was proper. See Standefer v. State, 59 S.W.3d 177, 180 (Tex.Crim.App. 2001) (stating that question clarifying whether juror could be fair and impartial and still take into account victim's status or profession not commitment question). The trial judge did not err. We overrule appellant's second point of error. We affirm the trial court's judgment.