Opinion
No. 05-06-01242-CR
Opinion Filed October 17, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause No. F055-1445-X.
Before Justices RICHTER, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Kelvin Tremaine Johnson of murder and assessed punishment at seventy-five years in prison. In two issues, Johnson complains the trial court erred in overruling his objection to improper punishment argument and denying his motion for new trial. We affirm. Briefly, the evidence showed that appellant shot Christopher Knight in the chest, lower abdomen, and back as Knight begged for help. Afterwards, he wrapped Knight's body in plastic, linens, and foam material and stuffed it in a closet. A thirteen-year-old girl, who witnessed the shooting, reported the incident to police even though she said appellant threatened to kill her if she told anyone. At trial, appellant testified he shot Knight in self-defense. In his first issue, appellant contends the trial court erred in overruling his objection to the prosecutor's argument at the punishment stage of trial. He specifically complains about the following highlighted remarks:
What I want you to think about when you think about how long should we lock the Defendant up, think about when he gets out. He's coming to your neighborhood. He's going to sell drugs to your kids. He's going to steal your car, and steal your money. He might even shoot you because that's what he does.Appellant contends the remarks were "manifestly improper and extreme, outside the record, amounted to an appeal to the fear and emotions of the jury, and asked them to abandon impartiality and objectivity." The State counters that the argument was proper and, even if not, was harmless. Permissible jury argument must fall within one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to the defendant's argument; and (4) plea for law enforcement. Rocha v. State, 16 S.W.3d 1, 21 (Tex.Crim.App. 2000). Arguments without evidentiary support and personally directed at jurors have been determined to be improper. Cannon v. State, 84 Tex. Crim. 479, 208 S.W. 660, 662 (1919) ("Gentlemen of the jury, if you suspend this man's sentence and let him go loose, he may kill me or you; my life or your life will be in danger."); Porter v. State, 120 Tex. Crim. 414, 49 S.W.2d 767, 769 (1932) ("Don't turn that beast loose. Under that frame of mind he would have shot you and me, and will do so yet if you don't put him where he will not have the opportunity to do so."). Assuming the above argument falls within the same class as those in Cannon and Porter and was therefore improper, any error was harmless. Texas Rule of Appellate Procedure 44.2(b) provides that nonconstitutional error "that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). Determining harm under this standard requires us to balance the following three factors: (1) the severity of the improper argument, (2) measures adopted to cure the misconduct, and (3) the certainty of the punishment assessed. Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000). The degree of misconduct was relatively mild when the argument is not viewed in isolation but is considered in context of all the arguments as a whole. To obtain a lesser punishment, the defense focused on the fact that the shooting victim, Knight, was of bad character and that appellant believed Knight had killed appellant's cousin. The defense argued that appellant was not necessarily violent because he had not "gunned down some little Boy Scout or little girl on her bike." In response, the State told jurors they should be "very, very scared of this man" and reiterated appellant's criminal history and the facts of this case. The complained-of argument was intended as a plea for law enforcement, and to the extent it went beyond the proper bounds and suggested facts outside the record, we conclude it would not influence the jury against appellant much more than a wholly legitimate plea. The first factor does not weigh heavily in appellant's favor. We quickly dispense with the second factor. Because the objection was overruled, there was no curative instruction. However, the complained-of comment was only four sentences of a six-and-a-half page rebuttal argument. Finally, the third factor weighs in the State's favor. The facts of the crime were compelling. The State's evidence showed that appellant planned the murder and tried to use a thirteen-year-old girl to implement the plan. Appellant gunned down Knight, who had been a longtime friend, as Knight begged for help. Afterwards, appellant wrapped his body and stuffed it in a closet. He threatened to kill the young eyewitness if she told anyone. Then, when first questioned by police, he lied. Further, the evidence showed appellant was a drug dealer. Additionally, at the punishment stage, the prosecutor put on evidence of appellant's criminal history and gang membership. Dallas Police Officer Norman Smith of the gang unit testified that appellant's tattoos indicated he had been a member in several gangs, including both the Crips and the Bloods. Based on the tattoos, Officer Smith believed appellant was currently a member of the People Nation Blood gang, a group found in the prison system but not on the streets of Dallas. Officer Smith testified membership in this gang would take "more knowledge, more understanding," which he said suggested appellant had "kind of grown into a more sophisticated gang member." Other evidence showed appellant had a criminal history dating back to when he was fourteen years old. His crimes included possession of a controlled substance, burglary of building, unauthorized use of a motor vehicle, and theft. Appellant's outbursts during trial prompted the trial judge to warn him that he would remove him from the courtroom if he could not control himself. Finally, appellant's punishment range was fifteen years to ninety-nine years or life; the jury gave him seventy-five years. The punishment was within the range, but not the maximum. Having weighed each of the factors, we conclude that any error associated with the prosecutor's argument was harmless. We overrule the first issue. In his second issue, appellant contends the trial court erred in overruling his amended motion for new trial in which he complained the jury was exposed to evidence other than that properly admitted. Specifically, he contends the jury foreperson, Kenneth Looney, overheard a conversation among Knight's family while on a courthouse elevator and repeated it to other jurors. The alleged conversation concerned the significance of appellant wearing a red shirt to trial and family members' disbelief that appellant would wear red to trial, the inference being that appellant was wearing his gang color. He argues the incident constituted an unauthorized communication warranting reversal. We disagree. We review a trial court's ruling on a motion for new trial for an abuse of discretion. Webb v. State, PD-0074-06, 2007 WL 1695317, *2 (Tex.Crim.App. June 13, 2007). We view the evidence in the light most favorable to the trial court's ruling and uphold the ruling if it was within the zone of reasonable disagreement. Id. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the ruling. Id. It is generally presumed that a defendant is injured whenever an impaneled juror converses with an unauthorized person about the case. Romo v. State, 631 S.W.2d 504, 506 (Tex.Crim.App. 1982), overruled on other grounds, Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). The defendant, however, must establish that if a communication occurred between a juror and someone else, that the communication involved the specific case at trial and was more than an innocuous, unrelated comment or exchange. Id. After reviewing the testimony at the new trial hearing, we cannot conclude the trial court abused its discretion in denying appellant's motion. At the hearing, defense counsel testified Looney related the alleged conversation while the prosecutor and defense attorneys were talking to jurors after the trial. Looney, however, testified he did not overhear any conversation in an elevator or hallway about "red shirts" nor did he hear any discussion among jurors about overhearing such comments about a red shirt. Moreover, ten other jurors also testified at the hearing, and none supported appellant's assertion. Each testified that he or she did not remember overhearing or being exposed to any comments about the red shirt from any family members and did not remember any discussion of such a subject among jurors. Although defense counsel believed a juror overheard a conversation and repeated it to other jurors, the eleven jurors testified to the contrary. Under these circumstances, we conclude the trial court could have determined that no unauthorized communication occurred. We overrule the second issue. We affirm the trial court's judgment.