Opinion
Nos. 05-04-01246-CR, 05-04-01247-CR
Opinion issued June 28, 2005. DO NOT PUBLISH. Tex.R App.P.47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-27001-Lq F03-73565-NQ. Affirmed as modified.
OPINION
On his pleas of not guilty, a jury found appellant Haider Alhakim guilty of robbery (cause no. 05-04-01246-CR) and aggravated robbery (cause no. 05-04-01247-CR). The indictment in each case alleged one prior conviction, to which appellant pleaded true. The jury assessed appellant's punishment in the robbery case at twenty years' confinement and a $10,000 fine. The jury assessed punishment in the aggravated robbery case at forty-five years' confinement and a $10,000 fine. Appellant's complaint on appeal in both cases is that the trial court reversibly erred by overruling his objection to the prosecutor's argument during the punishment stage of trial that appellant would not leave any witnesses alive if he were given the chance to rob again. In a cross-point, the State asks that we modify the judgment in the robbery case to accurately reflect the $10,000 fine assessed by the jury, not $15,000 reflected in the written judgment. For reasons that follow, we affirm the judgment in the aggravated robbery case. We sustain the State's cross-point in the robbery case, modify the judgment to show the $10,000 fine, and affirm as modified.
The judgment in the robbery case reflects a fine of $15,000, which is the subject of the State's cross-point.
Background
Within about two hours during the daylight hours on September 7, 2003, appellant committed one robbery and one aggravated robbery. At about 10:30 that morning, Nicholas Angus packed his bags, left his hotel, and walked to his car in the parking lot, preparing to return to his home in England. Angus noticed appellant in the parking lot with a paper in his hand. Appellant walked up to Angus's car. Angus, believing appellant wanted to ask directions, rolled down the car window to assist him. When Angus did so, appellant pulled out a knife, held it to Angus's chest, and told him to get out of the car. As he complied with appellant's demands, Angus was cut slightly on the arm and chest by the knife. Shortly thereafter, Linh Nguyen and his pregnant wife were at a gas station. Linh pumped the gas while his wife sat in their car. Appellant came up behind Linh at the gas pump, put something to Linh's back, and told Linh not to turn around, to keep "straight forward." The object was not sharp, and Linh thought it was a gun. Linh told his wife to get out of the car, which she did. When she got out, appellant pushed Linh out of the way and jumped into Linh's car. When Linh saw appellant did not have a weapon, Linh began to struggle with him. Others at the gas station came to Linh's aid and appellant was captured. While appellant was being held for the police to arrive, he took a swing at Linh in an attempt to escape. Appellant ran away and Linh chased him. Appellant tried to spray Linh with gas and used a garbage can top as a weapon. Linh was not injured thanks to the assistance of others. Someone turned off the gas, and another person gave Linh a crowbar with which to defend himself. Linh hit appellant with the crowbar. Appellant was eventually subdued and held for the police. After the jury found appellant guilty of the two offenses, the case proceeded to punishment. Appellant pleaded true to the enhancement paragraph alleged in each indictment and stipulated to evidence of two other convictions. The jury assessed appellant's punishment at twenty years' imprisonment in the robbery case and forty-five years' imprisonment in the aggravated robbery case. The jury also assessed a $10,000 fine in each case.Analysis
Appellant complains on appeal of the prosecutor's closing argument at punishment. Appellant argues the trial court reversibly erred by overruling his objections to the prosecution's argument at the punishment stage that appellant had learned not to leave any witnesses alive and if given the chance, would kill any future victims. 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 reversible error only if, considering the entire record, the argument is manifestly improper or injects new facts harmful to the accused into the trial. See id. Appellant, without specifically setting out the argument, contends the "brunt of the prosecution argument was that the appellant would kill any future victims so that they could not be witnesses against him." The State identified the following as the argument about which appellant is complaining:[Prosecutor]: Instead of getting a job, Mr. Al Hakim gets a knife. It's a lot quicker. It's a lot easier. And what does he do? He robs two people in the same method. Robs the first one with a knife, robs the second one pretending that he has a weapon.
So what kind of man are you dealing with? Are you dealing with a minimal don't have a record kind of guy? Are you dealing with a nice man? Or are you dealing with a convicted felon three times over that just isn't getting it?
Now, the most important thing I think about punishment is the fact that you all decide when he gets to do it again. Because think about, what has he learned today? What has he learned from this process? If I go out and commit a crime, witnesses will show up and testify against me, won't they? So don't give him a chance to learn to do it better.
[Defense Counsel]: Mr. Stone: Your Honor, I object to the speculation —
[The Court]: Overruled.
[Defense Counsel]: — in this matter.
[Prosecutor]: Don't give him a chance to do it better. You have to think about this in punishment. Don't give him a chance to do it better because the next time he'll make sure there are no witnesses here.
[Defense Counsel]: Your Honor, again, we would object to that. That's absolute speculation and it's far outside the record.
[Prosecutor]: Perfectly permissible in punishment, your Honor.
[The Court]: Overruled.
[Prosecutor]: He will make sure there aren't witnesses the next time because that is what he has learned today. Do not give this man an opportunity to create another victim.
Certain people in our society can straighten up. Certain people in our society can fly right. But certain people can't live in a free world without harming others, without robbing others. They just can't do it. They need to live in a correctional facility that's very structured. And Mr. Al Hakim has proven that's exactly where he belongs.Appellant contends the prosecutor's argument was improper because it was unsupported by the evidence, did not fall within any of the permissible areas of jury argument, was highly prejudicial to the appellant, and thus constitutes reversible error. The State responds that error is not preserved; the argument was a plea for law enforcement; and even if the argument constituted error, it was harmless error. Assuming, without deciding, both that error is preserved and that the trial court erred in overruling appellant's objection to the prosecutor's argument, we nevertheless conclude that any error was harmless. In the case of non-constitutional error, we may only reverse when the error affects appellant's substantial rights. See Tex.R.App.P. 44.2(b). 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); see also Hawkins v. State, 135 S.W.3d 72, 82 (Tex.Crim.App. 2004) (harm analysis where improper punishment argument). Appellant used a deadly weapon during the aggravated robbery and the complainant was injured during the crime. In the robbery case, appellant, while attempting to evade capture, fought with those attempting to restrain him for the police, including the complainant. The punishment range for the robbery, enhanced by one prior felony conviction, is five to ninety-nine years' or life imprisonment and an optional fine up to $10,000. See Tex. Pen. Code Ann. §§ 12.33, 12.42(b), 29.02 (Vernon 2003 Supp. 2004-05). The punishment range for the aggravated robbery, enhanced by one prior felony conviction, was fifteen to ninety-nine years' or life imprisonment and an optional fine up to $10,000. See id. §§ 12.42(c)(1), 29.03. In addition to the prior felony conviction alleged in the enhancement paragraphs, appellant stipulated that he had two other felony convictions. Defense counsel asked the jury to assess the minimum punishment in each case. The prosecutor, although not specifying a length of sentence, asked the jury to assess punishment in such a way to "guarantee that [appellant] cannot do this to anyone else ever again." The jury assessed twenty and forty-five year sentences, which were at the lower ends of their respective ranges. Applying the appropriate factors for determining harm, see Hawkins, 135 S.W.3d at 82-85, we conclude any error in overruling appellant's objection to the prosecutor's argument did not have a substantial and injurious effect or influence on the jury's punishment verdict. Thus, no substantial right of appellant was affected by the argument. See id. at 85; Simpson, 119 S.W.3d at 266. We resolve appellant's issue against him. By cross-point, the State asks us to modify the trial court's judgment in cause no. 05-04-01246-CR to accurately reflect the fine assessed. The jury assessed a $10,000 fine, the maximum allowed by statute, and that is the fine the judge orally pronounced. The written judgment, however, reflects a $15,000 fine. Therefore, the judgment is incorrect. We sustain the State's cross-point. We have the authority to modify the judgment to make the record speak the truth when we have the necessary information 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 trial court's judgment in cause no. 05-04-01246-CR to show a fine of $10,000. As modified, we affirm the judgment. We affirm the trial court's judgment in cause no. 05-04-01247-CR.