Opinion
No. 05-04-01213-CR
Opinion filed November 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-81973-03. Affirmed.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
Jesus Hernandez appeals the trial court's judgment convicting him of aggravated assault with a deadly weapon and sentencing him to three years of imprisonment. In two issues, Hernandez argues: (1) he properly preserved his complaint for appellate review; and (2) the trial court erred when it overruled his objection to the State's argument that he was part of a gang because it was outside of the evidence. We conclude the trial court did not err when it overruled his objection claiming the State argued outside of the evidence in its closing argument. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Eric Smith was driving to the store in his Jeep Wrangler. He had the hard top on his jeep, but his windows were down. He stopped at a four-way stop sign then turned left. As he was turning, a small white car with three persons inside ran the stop sign, drove close to his rear bumper at a quick rate of speed, and blew the horn a few times. Smith continued to drive. The white car continued behind him honking the horn and Smith thought he saw someone waving out of the window. When he stopped at a traffic light, Hernandez jumped out of the backseat of the white car and ran toward Smith's jeep yelling profanities and racial slurs. Smith told Hernandez to get back into his car and Hernandez threw an open, full beer can at him. The beer can hit Smith on the left side of his head and exploded all over the inside of his jeep. Hernandez ran back to the white car and got into the back seat. The white car drove away. Smith followed the white car into a parking lot. Before Smith could get the license plate number, Hernandez leaned out of the backseat window and fired three gunshots in his direction. Smith called 9-1-1 and continued to follow the white car at a greater distance while giving the police directions. The police arrived and arrested Hernandez. The revolver was recovered by the police farther back on the roadway. Hernandez pleaded guilty to the charge of aggravated assault with a deadly weapon in the indictment. The jury heard evidence on punishment and sentenced him to three years of imprisonment.II. PRESERVATION OF ERROR
In his first issue on appeal, Hernandez argues he properly preserved for appellate review the trial court's error. He contends that his trial counsel made a timely and specific objection to the trial court when the State commented during closing argument that he was affiliated with a gang. Also, he contends that the State's comments were not true and that after his objection was overruled the State continued to comment on his gang affiliation. The State responds that Hernandez's first issue does not present a legal issue to be resolved and preservation of error is a prerequisite to presenting a complaint for appellate review. The State does not contest Hernandez's argument that he preserved his complaint for appellate review. Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an appellate complaint. See Tex.R.App.P. 33.1. To preserve a point for appellate review, a party must make a timely, specific objection or motion to the trial court that states the grounds for the ruling sought with sufficient specificity, unless the grounds are apparent from the context, obtain a ruling on the complaint, and comply with the rules of evidence or procedure. See id. Preservation of error is properly considered as a prerequisite to presenting a complaint for appellate review. It is not a separate point of error. Accordingly, Hernandez's first issue does not present a legal issue for this Court to resolve.III. CLOSING ARGUMENT
In his second issue, Hernandez argues the trial court erred when it overruled his objection complaining the State argued outside of the evidence. He contends the State's reference to his father's testimony followed by the comment that he was part of a gang was impermissible jury argument. The State responds that its reference to Hernandez's gang affiliation in closing argument was a reasonable deduction from the evidence.A. Applicable Law
Permissible jury argument falls within one of four general areas: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) responses to the defendant's argument; and (4) a plea for law enforcement. Rocha v. State, 16 S.W.3d 1, 22-23 (Tex.Crim.App. 2000); Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App. 1997) (en banc). To constitute reversible error, jury argument must be extreme or manifestly improper or inject new and harmful facts into evidence. Borjan v. State, 787 S.W.2d 53, 56-57 (Tex.Crim.App. 1990) (en banc). A prosecutor is permitted in his argument to draw from the facts in evidence all inferences which are reasonable, fair, and legitimate. See id. at 57. However, it has long been established that reference to facts that are neither in evidence, nor inferable from the evidence is improper. Id. at 57. Usually, arguments referencing matters that are not in evidence and may not be inferred from the evidence are "designed to arouse the passion and prejudices of the jury and as such are highly inappropriate." Id. In examining challenges to jury argument, an appellate court considers the remark in the context in which it appears. Gaddis v. State, 753 S.W.2d 396, 396 (Tex.Crim.App. 1988). It is not error for a prosecutor to argue the defendant associates with people in a gang if the context of the argument does not refer to formal membership in a gang. See Rocha, 16 S.W.3d at 22-23 (prosecutor's statement that "[defendant] associates with people in a gang" was not error). The Texas Penal Code defines a "criminal street gang" as "[t]hree or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities." Tex. Pen. Code Ann. § 71.01(d) (Vernon 2003 Supp. 2005). However, the use of the word "gang" to refer to a loose association with others to commit crimes, rather than formal gang membership, is also a correct use of the word. See Rocha, 16 S.W.3d at 22-23.B. Application of the Law to the Facts
During the hearing on punishment, Hernandez's father testified he believed his son's past problems occurred because his son was hanging around with "the wrong crowd." He also stated one of his son's friends was murdered. Further, he stated his son was previously arrested for breaking into cars with "a couple of kids." During closing argument, the State referred to Hernandez's father's testimony regarding his affiliation with two groups:STATE: When you think about deterrents, think about the possible consequences of this case and think about the deterrents of other people too. You heard some of the hoodlums that he runs around with. And I'm, sure the argument is, oh, it's all their fault [sic]. He was with two different groups. His father says that one group that he was with that [sic] was breaking into somebody's car and one-one of the gangs that he was with, and then there's this gang in the car that was shooting at this other guy.
DEFENSE: Objection, misstatement of the evidence, Your Honor. There's nothing related to gang activity.
COURT: Counsel, if you'll just make your objection. You don't have to tell me —DEFENSE: Not consistent with the evidence presented.
COURT: Again, ladies and gentlemen, you'll by [sic] guided by the evidence that you heard in the trial of the case.DEFENSE: Is my objection overruled, Your Honor? COURT: Yes.
STATE: These are a gang of people that are committing crimes, and that's what they are. And he's making the choice to associate with them. He's choosing to put his person with them. You kind of represent yourself sometimes by the people that you're with. And it's not a one-time mistake that occurred, that's who [sic] he's hanging around with. So the deterrence is not just to him, but to these other people that he hangs around with on [sic] what's the price on this type of crime.During the hearing on punishment, Hernandez also commented on his affiliation with "bad people" or "the wrong crowd." In his opening statement, Hernandez stated:
Ladies and Gentlemen, when this incident happened my client was 17 years old. My client has come before you today entering a plea of guilty and saying that he did it. But he was 17, he was with some bad people, he was hanging around with the wrong crowd . . .In his closing argument, Hernandez stated:
Now, obviously [Hernandez] was hanging around some bad people. One of them is dead, murdered, because he was associating with the wrong people, and that's how all this happened . . .
[Hernandez] runs around with the wrong people when he's staying with his momma. . . . One night he goes around with some really bad people, does some drinking at 17, and makes some poor choices while he's drinking . . .
[B]ut it doesn't change the fact that putting [Hernandez] in the penitentiary for what [he] did after drinking beers with some bad people on one night, it just doesn't justify it.Based on the context of the statement, we conclude the State's closing argument was not referring to formal membership in a gang. There was evidence that Hernandez committed bad acts or crimes in groups. Hernandez's loose association with others to commit crimes or his participation in an informal gang can be deduced from the evidence. We conclude the trial court did not err when it overruled Hernandez's objection claiming the State argued outside of the evidence. Hernandez's second issue on appeal is decided against him.