Nos. 05-09-00419-CR, 05-09-00420-CR
Opinion Filed April 27, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F08-62191-YI and F08-62192-XI.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
Opinion By Justice MURPHY.
The sole issue in these appeals from jury convictions for possession of cocaine in the amount of four grams or more but less than 200 grams (appellate cause number 05-09-00419-CR) and possession of a firearm by a felon (appellate cause number 05-09-00420-CR) is whether the trial court abused its discretion in failing to declare a mistrial following improper punishment argument by the State. We affirm the trial court's judgment in the firearm case. We modify the trial court's judgment in the cocaine case to correct a clerical error and, as modified, affirm.
Background
Jose Manuel Olive was charged with the offenses following a traffic stop of the car in which he was riding. At the time of the stop, Olive had three prior convictions: (1) a 1998 conviction for burglary of a habitation for which he was sentenced two years; (2) a 1998 conviction for unauthorized use of a motor vehicle for which he was sentenced 270 days; and (3) a 2000 conviction for possession with intent to deliver cocaine in an amount greater than four grams for which he was sentenced fifteen years. At trial, Olive entered open guilty pleas and pleaded true to a deadly weapon allegation in each case. The arresting officers, David Pillar and Jeffery Eggleston, then testified in punishment as to the circumstances leading to the arrest. They testified they observed Olive leaning forward and reaching under the seat as they approached the car following the stop. When Olive exited the car at Pillar's request, Pillar noticed he had his right hand in his pocket. Pillar asked Olive to remove his hand from the pocket and Olive complied but kept his hand clenched. A search of Olive and under the car seat where Olive was sitting yielded 4.8 grams of cocaine and the gun, which was loaded. Olive stipulated to the prior convictions, testified he was a drug addict, and attributed his actions to drug use. He explained he began abusing drugs at age twelve and alcohol around age fourteen. He received substance abuse treatment for five months while in prison for the possession with intent to deliver conviction and continued with treatment after being released on parole eight years into the fifteen year sentence. Less than four months after being released on parole, however, he began using drugs again. On the night he was arrested for the offenses here, he had gone drinking with a friend and had purchased the cocaine for later use. Olive recognized he "need[ed] help" and needed "rehab." In it closing, the State argued that Olive had committed, and served time for, three offenses in a two year period and was "out buying dope" and "with a gun" while on parole. The State questioned Olive's sincerity with respect to rehabilitation and sought a sentence "toward the top," speculating that "[w]hen he gets out again, we're probably [going to] be right back here." Olive responded by asking the jury to consider the whole range of punishment and to "go with" any "good" they could find in him. After the trial court found the deadly weapon allegations true, the jury convicted Olive of both offenses and assessed the maximum twenty-year sentence in the cocaine case and maximum ten-year sentence and a $1000 fine in the firearm case. See Tex. Health Safety Code Ann. §§ 481.102(3)(D) (Vernon Supp. 2009) (cocaine is penalty group 1 substance), 481.115(d) (possession of penalty group 1 substance is second degree felony); Tex. Penal Code Ann. § 46.04(e) (Vernon Supp. 2009) (felon's unlawful possession of firearm is third degree felony); see also Tex. Penal Code Ann. § 12.33(a) (maximum prison sentence for second degree felony is twenty years), 12.34 (a) (maximum prison sentence for third degree felony is ten years). Discussion
Olive's complaint stems from the following comments made by the prosecutor towards the end of his rebuttal argument: We have chosen [twelve] people to serve as a conscience of the community. When you're confronted by somebody with repeated habits of turning to a life of crime and drugs, and he gets out of jail the first thing he wants to do is go back to the guns and drugs, that's a sign. That's a clear sign, an important sign, one we're praying you do not miss.
The trial court sustained Olive's objection that the statement that "he was going back to guns" was "outside the offense as mere possession" and instructed the jury not to "consider it." The trial court overruled Olive's motion for mistrial, and Olive contends on appeal that the court's instruction was inadequate to cure the harmful effect from the injection of new facts. He claims the argument gave a "clear impression" that he was a "chronic violent criminal" and led to the jury assessing the maximum punishment for each offense. The State insists the argument was proper because it was a summation of the evidence. Alternatively, the State argues the comment was not sufficiently extreme to warrant a mistrial. Applicable Law
The purpose of closing argument is to assist the fact-finder in drawing proper conclusions and inferences from the evidence. Gaddis v. State, 753 S.W.2d 396, 400 (Tex. Crim. App. 1988); Graves v. State, 176 S.W.3d 422, 431 (Tex. App.-Houston [1st Dist.] 2004, pet. stricken). Argument that (1) summarizes the evidence, (2) is a reasonable deduction from the evidence, (3) answers argument of opposing counsel, or (4) is a plea for law enforcement is permissible and proper. See Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Argument that interjects facts not supported by the record is improper. See id. (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988)). Generally, an instruction to disregard cures any harm from improper argument. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). We presume the jury followed the trial court's instruction to disregard. Id. at 116. We also presume the instruction was effective and cured any prejudicial effect caused by the complained-of remarks. See id.; Sanders v. State, 25 S.W.3d 854, 858 (Tex. App.-Houston [14th Dist.] 2000), pet. dism'd by, 56 S.W.3d 52 (Tex. Crim. App. 2001). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (citing Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)). Standard of Review
We review the denial of a motion for mistrial under an abuse of discretion standard. Id. at 77; Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We will find the trial court abused its discretion when its decision falls outside the zone of reasonable disagreement. Wead, 129 S.W.3d at 129. In determining whether the trial court abused its discretion by denying the mistrial and should be reversed, we balance three factors: (1) the severity of the misconduct, (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct. Hawkins, 135 S.W.3d at 77 (citing Martinez v. State, 17 S.W.3d 677, 693-94 (Tex. Crim. App. 2000)). In evaluating the severity of the misconduct, we assess "whether [the] jury argument is extreme or manifestly improper [by] look[ing] at the entire record on final arguments to determine if there was a willful and calculated effort on the part of the State to deprive [the] appellant of a fair and impartial trial." Brown, 270 S.W.3d at 573 (quoting Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)). Application of Law to Facts
Although the State argues the complained-of comment was a summary of the evidence, nothing in the record reflects Olive had previously been involved with guns. The comment was not so inflammatory, however, as to be incurable, and the record does not reflect a flagrant disregard for the permissible bounds of argument. The comment constituted but a small portion of the prosecutor's closing remarks, was not repeated, and was followed by a prompt instruction to disregard. While Olive argues now that the instruction was inadequate, he did not object at trial to the instruction nor request further jury instructions. See Lucero v. State, 246 S.W.3d 86, 102 n. 21 (Tex. Crim. App.) (observing complaint on appeal that jury instruction "tepid" and "not forceful" not raised at trial), cert. denied, 129 S. Ct. 80 (2008). Additionally, Olive points to nothing in the record indicating the jury did not follow the instruction. See Wesbrook, 29 S.W.3d at 116. With regard to Olive's claim the twenty-year punishment assessed would not have been assessed absent the argument, he admitted he was a drug addict; had prior convictions for burglary of a habitation, unauthorized use of a motor vehicle, and possession with intent to deliver cocaine; and his drug use was the cause of his problems. The offenses here were committed while he was on parole for the possession with intent to deliver cocaine and while he was receiving substance abuse treatment. Considering the evidence and the nature of the offenses, we cannot conclude the prosecutor's remarks contributed to the punishment assessed. See Hawkins, 135 S.W.3d at 85 (concluding lengthy sentence more likely attributable to numerous prior convictions over extended period of time and fact that some offenses were committed before punishment on others had expired). Under the facts of this case, we conclude the trial court did not abuse its discretion in denying the mistrial motion. We resolve Olive's sole issue against him. Modification of Possession of Cocaine Judgment
The trial court's judgment in the possession of cocaine case incorrectly recites Health and Safety Code section 481.112, concerning manufacture or delivery of penalty group 1 substance, as the "Statute for Offense." See Tex. Penal Code Ann. § 481.112 (Vernon Supp. 2009). Accordingly, we modify the judgment to reflect the "Statute for Offense" as section 481.115 concerning possession. See id. § 481.115; Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Conclusion
We affirm the trial court's judgment in the firearm case and affirm, as modified, the trial court's judgment in the cocaine case.