Opinion
No. 01-03-00562-CR
Opinion Issued July 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.4.
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 927152.
Panel consists of Chief Justice RADACK and Justices KEYES and BLAND.
MEMORANDUM OPINION
A jury found appellant, Dejuan Jermaine Handy, guilty of aggravated robbery. The trial court assessed his punishment at 35 years' confinement. In two issues presented for review, appellant contends that (1) the trial court erred by denying his motion to suppress and by allowing testimony regarding illegally obtained evidence, and (2) the prosecutor presented improper jury argument. We affirm.
TEX. PEN. CODE. ANN. § 29.03 (Vernon 2003).
Facts
On July 4, 2002, around midnight, Ruben Acuna was walking towards his black Lexus after leaving the Snappy Mart convenience store in Houston when appellant approached him, put a handgun to his head, and demanded that he turn over his car as well as a ring and a necklace that he was wearing. Acuna complied. He then ran back inside the store to call the police. Houston Police Officer Gwosdz responded to the call. He testified that Acuna described the suspect as a black male, approximately 21-years old, six feet tall, 180 pounds, wearing a light blue T-shirt, blue shorts, and a light blue visor. Acuna told Gwosdz that he believed the handgun the robber used was either a 9-mm or a .45 caliber. The next day, Houston Police Officer Reedy located Acuna's black Lexus in the parking lot of an apartment complex near the Snappy Mart. Reedy contacted the Robbery Division of the Houston Police Department. Houston Police Officer Nasworthy responded to the call and lifted fingerprints from the outside and inside of Acuna's Lexus. Houston Police Officer Rowe matched the prints taken by Nasworthy to the known prints of appellant. Based on the match, Houston Police Detective Cherry placed appellant's picture in a photo array. Acuna positively identified appellant from the photo array. On October 24, 2002, Agent Anthony Johnston, an agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, assisted the Houston Police Department in executing a search warrant. Johnson and Houston police officers executed the search warrant and found appellant inside the house. Appellant was subsequently arrested because he was found in possession of a Beretta .45-caliber semiautomatic handgun. Johnson testified that, after appellant was arrested, he discovered that appellant had an arrest warrant pending. At trial, appellant presented an alibi defense. Appellant's brother, Chad Green, his sister, Alfreda Raymond, and his sister's friend, Tamara Bell, all testified that, at the time of the robbery, they were together with appellant at appellant's mother's house for a barbeque to celebrate the holiday. Raymond testified that she stayed at the house until 11:45 p.m and that appellant was still there when she left. Green testified that appellant did not leave their mother's house between the hours of 10:00 p.m. and midnight. Green further testified that, the day after the robbery, appellant received a telephone call from Sharif, a friend, asking appellant and Green to come over. When Green and appellant went to Sharif's apartment complex, Sharif showed them a black Lexus he had "jacked." Appellant also testified in his defense. He claimed that he was at his mother's house for the barbeque on the day of the robbery. He then testified that, the day after the robbery, when he went to Sharif's apartment and saw the black Lexus, he purchased the battery from the vehicle and removed it himself, thus explaining how his fingerprints were found on the car. Appellant admitted that, when he was arrested, there was a weapon near him which belonged to him and that he had previously been convicted for possession of a controlled substance. The jury rejected appellant's alibi defense and convicted him of aggravated robbery.Discussion
Motion to Suppress In his first issue, appellant contends that the trial court erred by denying his motion to suppress and allowing testimony regarding illegally obtained evidence because officers conducted an illegal search of his home. In particular, appellant contends that, because he challenged the probable cause for an arrest or search and the State intended to justify its search of appellant's home on the basis of a warrant, the State was required to produce the warrant for the trial court's inspection to determine its sufficiency; because the State failed to produce the warrant for the court's inspection, the evidence should have been suppressed. Production of Warrant In a pretrial written motion to suppress, appellant claimed that the Houston Police Department's execution of a search warrant at his residence violated his constitutional and statutory rights. Appellant sought to suppress tangible evidence seized in connection with the investigation and his arrest, together with any testimony from law enforcement officials concerning the tangible evidence seized. The trial court did not hold a suppression hearing prior to trial. During trial, when the State called Agent Johnson to testify, appellant brought his motion to suppress to the trial court's attention. Outside the presence of the jury, the State elicited testimony from Johnson, and appellant cross-examined him. Appellant argued that his motion to suppress challenged the actual search warrant that led the officers to him and thus shifted the burden of proof to the State to show that the search warrant was issued by a neutral magistrate. Appellant also argued that Johnson could not testify regarding the information used to obtain the search warrant. The trial court denied appellant's motion to suppress. Appellant now contends that, although he challenged the search of his home and the seizure of the handgun found, the State did not present for the court's inspection the search warrant upon which the officers relied. Appellant argues that, since the State failed in its burden of producing the warrant, the handgun was obtained in violation of the laws of Texas and in violation of the Fourth Amendment and, consequently, the handgun and Johnston's testimony regarding the seizure of the handgun should not have been allowed before the jury. In Ortega v. State, 464 S.W.2d 876, 877 (Tex.Crim.App. 1971), the Court of Criminal Appeals held that, by making an objection as to the merits of the warrant and supporting affidavit, the defendant had recognized the existence of a search warrant; therefore, the burden of going forward on the ground that the magistrate had no probable cause to issue the warrant was on the defendant, who had to prove that the affidavit for the warrant was insufficient as a matter of law and who had to ensure that the warrant and affidavit were included in the record on appeal. Id. Here, appellant does not challenge the existence of a warrant. Furthermore, while the search warrant and its supporting affidavit do not appear in the record, the State introduced testimony that a warrant was obtained, and appellant produced no contrary evidence. See Underwood v. State, 967 S.W.2d 925, 928-29 (Tex.App.-Beaumont 1998, pet. ref'd). When the existence of the warrant is recognized in a motion to suppress, there is uncontradicted testimony that a warrant existed, and there is no objection to its validity on its face, as in the present case, it is not necessary for the record to show that the warrant was exhibited to the court. See Ortega, 464 S.W.2d at 878. We hold that, although the State did not produce the actual arrest warrant, the trial court had adequate opportunity to determine whether probable cause existed. See Etheridge v. State, 903 S.W.2d 1, 19 (Tex.Crim.App. 1994). Evidence Seized Appellant further contends that, because the handgun was unlawfully obtained, it should have been excluded from evidence. However, when a defendant "testifies to the possession of evidence which he has challenged as being unlawfully seized, he waives the error." Jones v. State, 843 S.W.2d 487, 493 (Tex.Crim.App. 1992); accord Creel v. State, 493 S.W.2d 814, 819 (Tex.Crim.App. 1973). Moreover, when the defendant testifies to the same facts that were proved by the State, error, if any, in admitting such facts is harmless. Jones, 843 S.W.2d at 493. Here, appellant, in his own defense, on direct examination, testified about owning the handgun. He testified that, although the weapon belonged to him, it was not registered in his name and that he bought it off the streets. On cross-examination, appellant also testified, without objection, that he was in possession of the handgun when he was arrested. Appellant's testimony was not impelled to meet, destroy, or explain his possession of the handgun, and appellant makes no such claim. The record clearly shows that the purpose of appellant's testimony was to present his alibi defense. The issue of whether there was a valid search and seizure was thus waived or rendered harmless by appellant's own testimony. We overrule appellant's first issue. Jury Argument In his second issue, appellant contends that the prosecutor presented improper jury argument by asking the jury to place themselves in the shoes of the victim and by giving her personal opinion as to the guilt and character of appellant. During the State's closing argument, the following exchange occurred:[Prosecutor]: What scared me to death and it should scare you, too, is the fact that this guy right here is such a brazen criminal that he would go up to a 29-year-old man, who looks like, as I described him could hold his own in a fight; okay? This is probably not a guy you would want to rob. If he is such a brazen criminal and committed such a brazen crime by holding a handgun to a guy's head, what's he going to do with us?
[Appellant]: Your Honor, that is inappropriate — Your Honor, we object to inappropriate plea for law enforcement, inappropriate argument.
[Court]: The lawyers' arguments are not evidence, ladies and gentlemen.
[Prosecutor]: You need to go back there and you need to do the right thing. This guy, yes, he's a drug dealer. He is also a robber and he's dangerous and cannot see the light of day again.The law provides for, and presumes, a fair trial, free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991). Proper jury argument must encompass one of the following: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsel's argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999); Sandoval v. State, 52 S.W.3d 851, 857 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the entire record. Sandoval, 52 S.W.3d at 857. In most cases, if error occurs, an instruction to disregard will cure any error committed. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996). To complain about an erroneous jury argument on appeal, a defendant must object and pursue that objection to an adverse ruling. Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App. 2003) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996)). A party must, therefore, object to the argument, request an instruction for the jury to disregard, and then move for a mistrial. See Cockrell, 933 S.W.2d at 89. Here, although appellant objected to the prosecutor's statements, he failed to pursue his objection to an adverse ruling; rather, after appellant objected, the trial court instructed the jury that "[t]he lawyers' arguments are not evidence, ladies and gentlemen." When an adverse ruling is not obtained, nothing is preserved for review. Flores v. State, 871 S.W.2d 714, 722-23 (Tex Crim. App. 1993) (judge's response, "[l]adies and gentlemen, I'll remind you that what the attorneys say is not evidence and cannot be considered by you as any evidence" to appellant's objection did not preserve error for appeal because although judge did not give clear instruction to disregard, appellant, apparently being satisfied, did not pursue objection to obtain adverse ruling). Accordingly, we overrule appellant's second issue.