Roden v. State

Full title: THOMAS GREGORY RODEN, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Nov 5, 2009

No. 05-08-01586-CR (Tex. App. Nov. 5, 2009)

Opinion

No. 05-08-01586-CR

Opinion Filed November 5, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-08-526.

Before Justices O'NEILL, FRANCIS, and LANG.

MEMORANDUM OPINION

Opinion By Justice LANG.

Following a plea of not guilty, appellant Thomas Gregory Roden was convicted by a jury of possession of a controlled substance in the amount of four grams or more, but less than 200 grams. Roden pleaded true to the enhancement paragraph in the indictment. The trial court found the enhancement paragraph true and assessed punishment at ten years' imprisonment and a $2500 fine. Roden raises a single issue on appeal, arguing the trial court erred when it overruled his objection to the State's improper jury argument during the guilt or innocence phase of trial. We conclude the trial court did not err when it overruled Roden's objection. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 4, 2007, Officer Donnie Breytspraak drove to 209 Becky in Rockwall, Texas, to investigate a report of a "suspicious vehicle" in that area. When he arrived at that location, he saw Roden and Jeffrey Brown sitting in a vehicle parked in front of 209 Becky. Both men alighted from the vehicle and Breytspraak began questioning them. Roden stated he had driven to 209 Becky to drop off his step-daughter's coat. Breytspraak obtained Roden's consent to search the vehicle and found "baggies with marijuana residue" on the driver's side and "a clear, plastic baggie containing the white crystalline rock substance," later identified as methamphetamine, in the center console. Breytspraak arrested both Roden and Brown. Roden accepted responsibility for all items in the vehicle, including the marijuana, tools, and other "stuff" found in the vehicle, except the methamphetamine found in the center console. Roden and Brown were both indicted for possession of methamphetamine. Brown agreed to testify against Roden and, although the State had not offered to drop the charges against Brown in exchange for his testimony, the State dismissed its case against Brown. In his closing argument, defense counsel highlighted the fact that Roden's arrest was proper under the "low standard that we call probable cause, proof more likely than not," arguing that without additional or "new evidence" the State could not meet its higher beyond a reasonable doubt burden of proof at trial. Then, defense counsel informed the jury its "job" was to "decide does Mr. Brown's testimony get us from probable cause to a reasonable doubt" when Brown testified against Roden to "save his own skin." The State argued the jury was "here to decide if Roden, in his own vehicle, with everything else, possessed the methamphetamine that was there." In response to defense counsel's argument about the contrast between the burdens of proof, i.e. "does Mr. Brown's testimony get us from probable cause to beyond a reasonable doubt," the prosecutor said:

You want to be able to prove your case beyond a reasonable doubt, not the probable cause that the officer has to prove to make the arrest. We talked about different burdens of proof. The officer has to have probable cause, more than 50 percent. [Roden's counsel] even said that on voir dire. You have to have more than 50 percent to even arrest them.

At that point, Roden objected to the prosecutor's "misstatement of the law." The trial court overruled the objection. The prosecutor continued, saying the jury did not "have to rely on Brown's testimony. I think you can throw it out." Roden's "[m]ere presence alone" was enough to prove possession beyond a reasonable doubt. Following the jury's finding of guilt, Roden pleaded true to the enhancement paragraph of the indictment. The trial court found the enhancement paragraph true and assessed Roden's punishment at ten years' imprisonment and a $2500 fine. This appeal timely followed.

II. IMPROPER JURY ARGUMENT

In his sole issue, Roden asserts the trial court erred when it overruled his objection to the prosecutor's "misstatement of the law" during the guilt or innocence phase of trial. Specifically, Roden contends the State's argument lowered its burden of proof, which was "confusing at best to the jury," and had "a substantial and injurious effect or influence in determining the jury's verdict." See Tex. R. App. P. 44.2(b). The State responds the error, if any, was harmless.

A. Applicable Law

Permissible jury argument falls within one of four general areas: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Lagrone v. State, 942 S.W.2d 602, 619 (Tex. Crim. App. 1997). A prosecutor may answer jury arguments by the defense as long as the response does not exceed the scope of the invitation. Andujo v. State, 755 S.W.2d 138, 144 (Tex. Crim. App. 1998). To constitute reversible error, jury argument must be extreme or manifestly improper, violate a mandatory statute, or inject new and harmful facts into evidence. Hawkins v. State, 135 S.W.3d 72, 80 (Tex. Crim. App. 2004); Dooley v. State, 65 S.W.3d 840, 843 (Tex. App.-Dallas 2002, pet. ref'd).

B. Application of the Law to the Facts

Roden asserts the alleged "misstatement" regarding a percentage required to arrest someone for probable cause lowered the State's burden of proof and was "confusing at best" to the jury. However, Roden has not shown us how the "misstatement" was incorrect or why the prosecutor's response to defense counsel's argument was improper jury argument. After reviewing the record, we conclude the State's argument was permissible because it was in answer to defense counsel's argument about the two burdens of proof and did not exceed the scope of the invitation. See Jackson, 17 S.W.3d at 673; Andujo, 755 S.W.2d at 144. Accordingly, we conclude the trial court did not err when it overruled Roden's objection. Roden's sole issue is resolved against him.

III. CONCLUSION

The trial court did not err when it overruled Roden's objection. The trial court's judgment is affirmed.