No. 14-07-00762-CR
Opinion filed January 6, 2009. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 1073124.
Panel consists of Justices ANDERSON and FROST, and Senior Justice HUDSON.
Senior Justice J. Harvey Hudson sitting by assignment.
J. HARVEY HUDSON, Senior Justice.
Appellant, Bakari Holland, was charged by indictment with aggravated robbery. He pled "guilty" to the offense, and the jury subsequently assessed punishment at sixty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises a single issue on appeal in which he contends the trial court allowed the State's attorney to engage in improper jury argument during her closing argument. We affirm.
BACKGROUND
Throughout the evening on June 13, 2006, appellant and two friends robbed several people at gunpoint. First, appellant forced three minors to give him their jewelry after determining they did not have any cash. Appellant and his friends then noticed Luis Garcia talking on a pay phone with his white Suburban parked nearby. Garcia's wife, Maricell Vargas, was inside the vehicle with their four children. Appellant pointed his gun at Garcia and demanded money, and then decided to take Garcia's Suburban. Appellant forced Vargas out of the vehicle at gunpoint and removed the youngest child, two-year-old Stephanie, from the front seat while one of his friends removed the other children from the back seat. Appellant, who was driving, started the car and reversed a short distance before leaving the scene. As he drove away, appellant ran over Stephanie, killing her. Testimony offered during the punishment proceedings indicated appellant realized immediately that he had run over the child. Appellant then robbed another unrelated pedestrian at gunpoint. Appellant was charged with and pled "guilty" to aggravated robbery. The jury sentenced him to sixty years' confinement. On appeal, appellant argues the trial court erred in overruling his objections to the prosecutor's allegedly improper jury argument. Specifically, appellant contends the prosecutor sought to inject her personal opinion, and forced the jurors to consider speculative and extraneous matters outside the record. Appellant complains of the following three jury arguments by the State: (1) PROSECUTOR: Ladies and gentlemen, this is a life case. You know it as soon as he comes across your desk at the DA's office.
(2) PROSECUTOR: Most of you probably recognize exactly who Bakari Holland is. . . . But every now and then there's a juror who sympathizes. I've done this a bunch of times, and I've seen it happen.
(3) PROSECUTOR: And the third thing that I want you to consider when you go back there is that family, and that mother and that child. And I asked you because I'm sometimes amazed that the jury, in one of my cases, forgets about them.
ANALYSIS
A. Jury Argument
The purpose of closing argument is to facilitate the jury's analysis of evidence presented at trial to arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted into evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. [Panel Op.] 1980). The four permissible areas of jury argument are (1) summation of the evidence; (2) reasonable deductions drawn from the evidence; (3) answer to opposing counsel's argument; or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000); Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999). Even when a jury argument exceeds these approved areas, it will not constitute reversible error unless the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). A statement made during jury argument must be analyzed in light of the entire argument, and not only by isolated sentences. Castillo v. State, 939 S.W.2d 754, 761 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd). The State is allowed wide latitude in drawing inferences from the evidence as long as the inferences drawn are reasonable and offered in good faith. Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App. 1997). However, the State may not use the jury argument to bring before the jury, either directly or indirectly, evidence which is outside the record. Borjan v. State, 787 S.W.2d 53, 57 (Tex.Crim.App. 1990). The effect of such an argument is to request the jury to determine the punishment of the accused based on collateral matters which were interjected by way of the jury argument. Id. Appellant claims the prosecutor improperly injected her personal opinion regarding punishment when she said, "this is a life case." The State argues the prosecutor was responding to appellant's plea for lenient punishment. It is improper for a prosecutor to inject personal opinion because jurors may infer that the prosecutor's opinion was based on outside information not available to the jury. Boyd v. State, 643 S.W.2d 700, 706 (Tex.Crim.App. [Panel Op.] 1983); Bui v. State, 964 S.W.2d 335, 345 (Tex.App.-Texarkana 1998, pet. ref'd). However, a prosecutor may argue her opinion concerning issues in the case so long as the opinion is based on the evidence in the record and does not constitute unsworn testimony. Bui, 964 S.W.2d at 345. Moreover, it is well settled that the prosecutor may answer jury argument by opposing counsel if the response does not exceed the scope of the invitation. Andujo v. State, 755 S.W.2d 138, 144 (Tex.Crim.App. 1988). Here, the prosecutor stated her opinion that appellant should be sentenced to life in prison after defense counsel requested that the jury sentence appellant to ten years and recommend probation. A prosecutor may recommend that the jury assess severe punishment when it is based on the evidence. See Sneed v. State, 734 S.W.2d 20, 25 (Tex.App.-San Antonio 1987, pet. ref'd). A fair reading of the record shows that her opinion was based on the evidence. Aggravated robbery is a first degree felony punishable by imprisonment "for life or for any term of not more than 99 years or less than 5 years." Tex. Penal Code Ann. §§ 12.32(a), 29.03(b) (Vernon 2003). Given the egregious conduct of appellant in this case, the prosecutor properly asked the jury to sentence appellant to the most severe punishment available. During her closing, in response to the defense argument that Stephanie's death was a tragic accident, the prosecutor likened appellant's behavior to playing Russian roulette with the lives of others. She focused on the severity of the crimes committed and the foreseeability that appellant's reckless behavior could result in someone's death. Thus, statement (1) represents a fair recommendation of severe punishment based on the evidence, as well as a proper response to defense counsel's argument for leniency. Regarding statements (2) and (3), appellant argues the prosecutor improperly referred to conduct by jurors she has encountered in past cases, when she asked the jury not to sympathize with appellant and to remember the victims during deliberation. Appellant contends these statements were meant to convince the jury to hold appellant responsible for previous cases incorrectly handled by other juries. However, as long as a prosecutor does not describe other cases in detail during her argument, she may generally compare and contrast the case she is arguing with other cases. Tatum v. State, 649 S.W.2d 139, 141 (Tex.App.-Fort Worth 1983, pet. ref'd) (citing Williams v. State, 535 S.W.2d 637 (Tex.Crim.App. 1976); Shipp v. State, 482 S.W.2d 870 (Tex.Crim.App. 1972); Brummett v. State, 384 S.W.2d 708 (Tex.Crim.App. 1964)). We hold the trial court did not err in overruling appellant's objection to these statements, because no mention was made as to any specific verdict or circumstances surrounding any other case. See Williams, 535 S.W.2d at 640. Like statement (1), the prosecutor made statement (2) in response to defense counsel's prior argument. During closing, the defense attempted to invoke sympathy from the jury by focusing on appellant's troubled childhood, learning disability, and his below-average I.Q. The prosecutor's request that the jury avoid sympathizing with appellant was offered in response to that argument. See Andujo, 755 S.W.2d at 144. The record indicates the prosecutor asked the jury to avoid compassion toward appellant in response to appellant's plea for sympathy. Therefore, the prosecutor did not act improperly in making comment (2) in response to defense counsel's argument. Statement (3) was uttered as part of a broader plea for law enforcement. We have upheld similar statements reminding the jury to consider the victims of the crime, as proper pleas for law enforcement. Ayala v. State, 267 S.W.3d 428, 435 (Tex.App.-Houston [14th Dist.] 2008, pet. filed); Torres v. State, 92 S.W.3d 911, 923-24 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). Here, as in those cases, the prosecutor's request did not inject any undue prejudice or other arbitrary factor which unfairly influenced the jury's recommendation as to punishment into the penalty proceeding. See Torres, 92 S.W.3d at 924. Thus, we hold statement (3) was a proper plea for law enforcement. B. Harm Analysis
Moreover, even were we to assume error, we conclude such error would be harmless. Improper jury argument is reviewed under a nonconstitutional harm analysis. Tex. R. App. P. 44.2(b); Threadgill v. State, 146 S.W.3d 654, 666 (Tex.Crim.App. 2004). Under Rule 44.2(b), the reviewing court disregards the error if it does not affect the defendant's substantial rights. Tex. R. App. P. 44.2(b); McGowen v. State, 25 S.W.3d 741, 745 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). A substantial right is affected when the improper jury argument has a substantial and injurious effect or influence on the jury's verdict. McGowen, 25 S.W.3d at 745 (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)). Determining whether harm exists requires a balancing of the following factors: (1) severity of the misconduct (the magnitude of the prejudicial effect caused by the State's improper jury argument); (2) curative measures (the effectiveness of any cautionary instruction given by the trial court); and (3) certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Torres, 92 S.W.3d at 924 (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex Crim. App. 1998)). Because the argument here occurred during punishment, the third factor is accordingly modified. Id. With respect to the first factor, the prejudicial effect was minimal. The complained-of statements were only a small portion of the State's overall closing argument, which emphasized the reckless nature of appellant's conduct toward multiple victims and his violent temperament in general. The prosecutor also asked the jury to give justice to the victims by recommending what she considered to be a fair punishment. As to the second factor, no curative action was requested nor taken. Finally, we conclude that, given appellant's violent nature, his apparent lack of remorse after running over the child, and the egregious conduct appellant demonstrated, the complained-of argument had little to no effect on the 60-year sentence assessed by the jury. Therefore, the error, if any, did not affect appellant's substantial rights. Accordingly, the sole issue presented on appeal is overruled. CONCLUSION
We hold the trial court did not err in overruling appellant's objections to the State's closing argument. The judgment of the trial court is affirmed.