Opinion
No. 05-04-00802-CR
Opinion Issued April 5, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F03-52188-SH. Affirmed as modified.
OPINION
Appellant Michael Dewayne Thompson was found guilty by a jury of the offense of delivery of cocaine, a controlled substance, in an amount less than one gram. See Tex. Health Safety Code Ann. § 481.112(a), (b) (Vernon 2003). The jury assessed appellant's punishment at two years' confinement in a state jail facility and a $10,000 fine. On appeal, appellant raises only one issue: whether the district court erred in overruling appellant's timely and specific objection to the improper argument of the State. Concluding no reversible error has been shown, we affirm the trial court's judgment as modified. Appellant was arrested following an undercover drug buy. A detective assigned to the narcotics division of the Dallas Police Department, Leonard Standige, had received complaints of drug use in a particular area of the city. At about 5:30 p.m. on June 3, 2003, Standige was on duty with his partner, detective Danny Avalos, dressed in plain clothes and driving an unmarked vehicle. They were in the area working undercover attempting to buy crack cocaine. Two other undercover officers were in another unmarked vehicle parked nearby working surveillance. Standige saw several people in a vacant field where he had made previous drug buys. Appellant and another suspect, Dwight Grant, signaled Standige and Avalos to pull over, which they did. When the two men approached the undercover officers' vehicle and asked what they wanted, Standige responded, "a fat 20." That phrase is street language for $20 worth of crack cocaine. Appellant was standing nearby when the undercover officers, responding to Grant's question, told him they were not police officers. Appellant gave Grant a small orange object, which Grant put on the dashboard of the unmarked vehicle. Based on his training and experience, Standige believed the package contained crack cocaine. Standige put $20 on the dashboard. Grant took the $20 and gave it to appellant. Standige and Avalos then left the scene and relayed the information to the surveillance officers who had witnessed the transaction. The surveillance officers contacted uniformed patrol officers to arrest Grant and appellant, which they did. Standige drove by the scene of the arrest and confirmed the uniformed officers had arrested the right men. Although no money was found on appellant at the time of his arrest, Standige testified this was not uncommon-drug dealers often dispose of money following a transaction in an attempt to get rid of any evidence. Avalos testified he witnessed the drug delivery to Standige. Chemical analysis confirmed the substance was cocaine weighing .25 grams, including adulterants and dilutants. Appellant presented no evidence at trial. However, through cross-examination of the State's witnesses, he sought to establish a defense of misidentification. At the very beginning of appellant's closing argument, the following occurred:
[Defense counsel]:
Somewhere out there, there is an African-American man walking around with no facial hair, a marked 20 in his pocket with some officer's initials on it and a smile on his face. This man was not involved in that drug transaction. . . .During the State's closing argument, the prosecutor argued:
[Prosecutor]:
And if there truly is somebody else out there that these officers failed to pick up that day, there is truly somebody out there with a smile on his face and a marked $20 bill in his pocket, where is he? Isn't that the one witness who is out there who exists who could come in and tell what really happened? He could have been subpoenaed. He could have been brought down here.
[Defense counsel]:
Object. If anybody has a Fifth Amendment right not to incriminate themselves, Your Honor.
The trial court overruled defense counsel's objection.On appeal, appellant contends the prosecutor's argument was improper because the "necessary predicate" had not been met. Appellant argues the State was required to present evidence to show the witness was available and, if subpoenaed, would have testified. Because the State did not present such evidence, appellant contends reversal is required. Contending error, if any, was not preserved, the State cites Euziere v. State, 648 S.W.2d 700, 703 (Tex.Crim.App. 1983), in support of its argument that defense counsel's objection was not specific enough to apprise the trial court of the precise legal basis for his objection, thus error was not preserved. The State further argues that even if error was preserved, the prosecutor's closing argument was within the permissible areas of jury argument. Finally, the State argues, that even if it were not proper jury argument and constituted error, it was harmless, thus reversal is not required. The four permissible areas of jury argument are: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) proper pleas for law enforcement. See Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). Argument exceeding those permissible areas is only reversible error, if, considering the entire record, the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the accused into the trial. See Felder v. State, 848 S.W.2d 85, 95 (Tex.Crim.App. 1992). To preserve a complaint for appellate review, one must timely object at trial stating the legal grounds for the objection with sufficient specificity to apprise the trial court of the complaint. Tex.R.App.P. 33.1(a)(1)(A); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990) (citing Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977)). An objection stating one legal basis may not be used to support a different legal theory on appeal. See Rezac, 782 S.W.2d at 870. Appellant's complaint on appeal does not comport with his trial objection. Therefore, appellant has not preserved his complaint for review. But, even if error were preserved, we conclude the State's argument was invited by defense counsel's argument that he had been misidentified and the actual defendant who committed the offense was "still out there." See McKay v. State, 707 S.W.2d 23, 37 (Tex.Crim.App. 1985) (when defense argues someone other than defendant committed offense, State may respond by commenting on lack of evidence to support such theory). Moreover, the State may properly comment to the jury on defendant's failure to call as a witness the person he claims actually committed the offense with which he has been charged. See Rodgers v. State, 486 S.W.2d 794, 797 (Tex.Crim.App. 1972). The trial court did not err in overruling appellant's trial objection. Finally, even if error occurred, it was harmless. See Tex.R.App.P. 44.2(b) (requiring reversal only when appellant's substantial rights affected). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Simpson v. State, 119 S.W.3d 262, 266 (Tex.Crim.App. 2003), cert. denied, 124 S. Ct. 2837 (2004). Applying the appropriate factors for determining harm, see Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000), we conclude the claimed error did not have a substantial and injurious effect or influence in determining the jury's verdict. Thus, no substantial right of appellant was affected by the State's argument. See Simpson, 119 S.W.3d at 266. We resolve appellant's issue against him. We note that the trial court's judgment incorrectly identifies the offense for which appellant was convicted. The judgment states that appellant was convicted of possession of a controlled substance, to-wit: cocaine. Appellant, however, was indicted for and convicted of delivery of a controlled substance. This Court has authority to modify the judgment to make the record speak the truth when it has the necessary information before it to do so. See Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd) (en banc). Accordingly, we modify the section of the trial court's judgment entitled "offense convicted of" to state "unlawful delivery of a controlled substance, to-wit: cocaine."
As modified, we affirm the trial court's judgment.