Opinion
No. 05-04-01231-CR
Opinion Issued June 28, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-55834-QV.
Affirmed.
OPINION
Appellant Jamar Rashaw Goodwin appeals from his jury conviction for murder. After it found appellant guilty, the jury assessed appellant's punishment at thirty years' confinement in the penitentiary. Appellant's sole point of error on appeal is that the trial court erred in allowing improper jury argument by the prosecutor on punishment. We affirm the trial court's judgment.
The State's motion to revoke appellant's probation in another case, alleging the same murder as the only violation, was heard simultaneously with the jury trial for the murder itself.
Background
The facts reflect that the murder occurred during a drug buy. Dale Vith testified that his brother, Keith Vith, the decedent, was a 32-year-old electrical contractor who lived with his mother and had a crack cocaine addiction. On the date of the murder, the decedent had driven to an apartment complex in a high crime area of Dallas to buy crack cocaine. While still in his car in the parking lot, he was approached by two or more individuals selling drugs. A struggle ensued. The decedent started to drive away with one or more of the sellers hanging out the windows of the car. A third person, later identified by an eyewitness as appellant, approached with a handgun and shot the driver. Evidence was conflicting about the specifics of where various people were at the time of the murder. Initially, the police found no eyewitnesses to the murder. However, an eyewitness eventually came forward. After gang unit police officers, together with detectives from the Dallas Police Department Crimes Against Persons (CAPERS) developed a suspect, they went to apartment 103 at the Ridgecrest Apartments in Dallas County. Qian Savels, later identified as appellant's girlfriend, answered the door. Savels ultimately gave consent for the officers to enter her apartment. Inside, the police found and arrested appellant, who was lying in bed with his hands under the sheets. No weapon was recovered. Appellant and Savels were taken to the police department and questioned. Savels testified at trial that on the day of the shooting appellant seemed nervous and said he had shot a man in the shoulder. Savels testified that the police threatened to take her children away if she did not cooperate and the police allowed her to talk to appellant alone at the police station. Savels was crying and very upset when she talked to appellant. Appellant told Savels to tell the police he shot the decedent in the shoulder so that she could go home to her children. Appellant initially denied involvement in the murder. However, the day after the murder, appellant signed a written, voluntary statement in which he admitted he shot the decedent one time in the shoulder. Appellant testified at the guilt-innocence stage of trial that he was not the shooter. He testified that he only confessed because Savels was crying and upset because the police were going to take her children away. To help Savels, appellant told her to tell the police that he had shot the decedent in the shoulder. At trial, appellant claimed Corey Mitchell, referred to as "Little C," was the shooter. Appellant testified he never told the police during their investigation that "Little C" was the shooter because he did not want to "snitch" on Little C. Appellant did not testify at the punishment stage.Analysis
On appeal, appellant claims the trial court erred in allowing improper jury argument by the prosecutor, over defense counsel's objection, at the punishment stage of trial. Appellant asserts the prosecutor's argument was outside of the record, not a reasonable deduction from the evidence, and highly prejudicial and harmful. 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. In his "summary of the argument," appellant contends the "prosecutor argued that the appellant had learned not to leave any witnesses alive and, if given the chance, would kill any future victims. This argument was outside the record, not a reasonable deduction from the record, personal opinion of the prosecutor, and highly prejudicial and harmful to the appellant." In his argument, however, appellant complains as follows:The State's punishment evidence showed that appellant had several misdemeanor convictions and one felony conviction. During his punishment argument the prosecutor stated that at his guilty plea to these offenses the appellant had said that it would not happen again. Further the prosecutor stated that two months before this murder the appellant had been in court claiming that he was a good candidate for probation and worth taking a chance on and had been given probation on a felony case. The appellant objected that these arguments of the prosecutor were outside the record. The Court overruled both objections.Appellant's summary of argument is simply incorrect. The record in this case does not reflect that either prosecutor argued "that the appellant had learned not to leave any witnesses alive and, if given the chance, would kill any future victims." The record does reflect the following arguments by the prosecutors during the punishment hearing:
[Prosecutor Moss]: But what we need to consider when you consider his criminal history is this. You have four misdemeanors and one felony. Let's consider Jamar Goodwin as a criminal. Okay? Because what we know is, we know that he had four prior misdemeanor convictions.
And what do we know? Each of those times he came in front of a judge and he sat up here and he pled guilty, and in doing so said, you know, it's not going to happen again. And on that felony case just two months before he committed this murder, he stood right here and looked right here, and he says, you know, I'm a good candidate for probation, and he gets probation. Two months before he commits a murder, he stands here and said he was worth taking a chance on —After the trial court overruled defense counsel's objection that the prosecutor was arguing outside the record, the prosecutor continued:
[Prosecutor Moss]: And, folks, you'll see it in the judgement, you'll see that he was placed on probation.
You see, folks, when you consider it, think about that day. Think about two months before this murder. You take a chance on Jamar Goodwin-if you would have taken a chance on him, you would have been wrong. We can't afford to be wrong again. One life has been taken because Jamar Goodwin was given a chance. We can't afford to be wrong again. When you take a life, you deserve punishment.Considering the entire record in this case, including appellant's prior convictions, we conclude the trial court did not abuse its discretion by overruling defense counsel's objection that the prosecutor's argument was outside the record. We conclude the argument was a reasonable deduction from the evidence. During the punishment hearing, the State introduced evidence of appellant's five prior convictions. Four of the convictions were for misdemeanor offenses, to which appellant had pleaded guilty and was given jail time. The fifth conviction was for a felony cocaine possession offense. Appellant pleaded guilty to the offense and on August 26, 2002, less than two months before the October 15, 2002 murder, was sentenced to two years' confinement, probated for four years. Moreover, even if the prosecutor's argument should be considered to improper, we conclude any error in overruling appellant's objection 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). The punishment range for first-degree murder is imprisonment for five to ninety-nine years or life and an optional fine not to exceed $10,000. See Tex. Pen. Code Ann. §§ 12.32 (a), (b); 19.02(c) (Vernon 2003). The prosecutor argued for a sentence "high enough" to keep appellant "off the streets." Defense counsel asserted that appellant's prior convictions were not for serious offenses, emphasized Mitchell's role in the murder, and asked the jury to assess punishment at the lower end of the punishment range. The jury assessed a thirty-year sentence, which is on the lower middle end of the range. Applying the appropriate factors for determining harm, see Hawkins, 135 S.W.3d at 82-85, we conclude any error 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. We affirm the trial court's judgment.