Opinion
Nos. 05-02-01092-CR, 05-02-01093-CR, 05-02-01094-CR, 05-02-01095-CR
Opinion Filed November 6, 2003 DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the Judicial District Court No. 363, Dallas County, Texas, Trial Court Cause Nos. F01-75985-MW, F01-76003-MW, F01-76021-NW, F01-76022-NW. AFFIRM as REFORMED and AFFIRM
Before Justices MORRIS, O'NEILL, and LANG.
OPINION
Appellant appeals three convictions for aggravated robbery and a conviction for aggravated sexual assault. After finding appellant guilty of the offenses, the jury assessed punishment at fifty years' confinement in the aggravated robbery cases and seventy-five years confinement in the aggravated sexual assault case. In two points of error, appellant contends the trial court erred in overruling his objection to improper jury argument. In a single cross-point of error, the State asserts the judgments in the aggravated robbery cases should be reformed to show the jury made affirmative deadly weapon findings in those cases. For the following reasons, we reform the trial court's judgments in the aggravated robbery cases, and affirm the judgments, as reformed. We also affirm the trial court's judgment in the aggravated sexual assault case. Appellant pleaded guilty before a jury to three aggravated robberies and one aggravated sexual assault. Appellant also pleaded true to the two enhancement paragraphs in each indictment. At the plea/punishment hearing, the State presented evidence that appellant robbed a McDonald's restaurant. In the course of the robbery, appellant, armed with a firearm, forced the store's female manager to help him put three employees into a freezer. After robbing the store, appellant raped the manager and forced her too into the freezer. Appellant turned himself in after realizing he was caught on a surveillance tape in the store. In closing, the prosecutor argued:
[PROSECUTOR]: Folks, I'm going to apologize to you right now, because we are about to saddle you with a pretty big burden. In two and a half years in this office, I have never asked —
[APPELLANT]: Your Honor, I'll object. The argument has to do with the personal feeling of [the prosecutor].
[TRIAL COURT]: Sustained.
[PROSECUTOR]: We're gonna ask you bring back a life sentence, and that's not something we do down here very often.
[APPELLANT]: Your honor, again, I'll object; arguing matters outside the record.
[TRIAL COURT]: Overruled. In his first and second points of error, appellant contends the trial court erred in overruling his objection because the argument was outside the record and consisted of the prosecutor's personal opinion regarding appellant's punishment.To be proper, jury argument must fall into one of the following categories:
(1) summation of the evidence, (2) reasonable deductions from the evidence, (3) response to arguments of opposing counsel, and (4) pleas for law enforcement.Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App. 1992); Dooley v. State, 65 S.W.3d 840, 843 (Tex.App.-Dallas 2002, pet. ref'd). Prosecutorial argument that is outside the record and injects personal opinion is improper. Romo v. State, 593 S.W.2d 690, 694 (Tex.Crim.App. 1980), overruled on other grounds by Wagner v. State, 687 S.W.2d 303 (Tex.Crim.App. 1984). We begin by noting that appellant did not preserve error with respect to the prosecutor's first unfinished statement concerning her prior actions in the district attorney's office. Specifically, appellant's objection to that argument was sustained and he did not seek further relief. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Thus, he waived error by failing to obtain an adverse ruling. See id. Appellant did preserve error with respect to the prosecutor's subsequent argument that the State does not often ask for life sentences. Assuming this argument was error, we conclude it was harmless. See Romo, 593 S.W.2d at 694. Improper jury argument is nonconstitutional error which we must disregard unless it affected appellant's substantial rights. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). We will not reverse a jury's verdict if, after examining the record as a whole, the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). In determining the harmful effect of improper argument at punishment, we consider (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of the punishment assessed absent the misconduct. See Mosley, 983 S.W.2d at 260; Torres v. State, 92 S.W.3d 911, 924 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd); see also Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000). The error in this case consists of the prosecutor's statement to the jury that the State did not request life sentences "very often." The statement was, at most, a vague statement concerning the State's normal practices and did not inform the jury of any particular egregious facts outside the record. Thus, any misconduct was not severe. Further, reviewing the State's argument as a whole, it is clear the prosecutor was urging the jury to assess life sentences because of the specific facts of the case. Moreover, the jury did not assess life sentences as requested by the prosecutor. Rather, the jury tailored the sentences to the offenses — assessing fifty year sentences in each aggravated robbery case and a seventy-five year sentence in the aggravated sexual assault case. The evidence presented to the jury clearly warranted these sentences. In addition to the seriousness of the offenses charged, appellant had numerous prior convictions — for aggravated robbery, aggravated kidnaping, possession of cocaine, possession of marijuana, evading arrest, and possession of a firearm by a felon. In closing, appellant himself conceded the facts did not warrant the minimum twenty-five year sentences applicable to the offenses. After reviewing the record as a whole, we conclude the complained-of argument had little or no effect upon the jury's assessment of appellant's sentences. We overrule appellant's first and second points of error. In a cross-point of error, the State asks that we reform the trial court's judgments to show the jury made affirmative deadly weapon findings in each of the aggravated robbery cases. The record shows that in each of the robbery cases, the indictments contained an allegation that appellant used or exhibited a deadly weapon in the commission of the offenses. The jury found appellant guilty in each case of "Aggravated Robbery with a Deadly Weapon, as charged in the indictment." Consequently, the trial court's judgments should reflect the jury's affirmative findings in those cases. See French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992); Cobb v. State, 95 S.W.3d 664, 668 (Tex.App.-Houston [1st Dist.] 2002, no pet.). According to appellant, however, we cannot reform the judgments because the State did not file notices of appeal in these cases. See Strong v. State, 87 S.W.3d 206 (Tex.App.-Dallas 2002, pet. ref'd). However, this Court has the authority to correct a judgment so that it "speaks the truth" when we have the necessary data to do so. French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). This authority is not dependant upon a request from any party and we may reform a judgment sua sponte. Asberry, 813 S.W.2d at 529. Therefore, we reform the trial court's judgments to reflect the jury's finding in each of the aggravated robbery cases that appellant used or exhibited a deadly weapon in the commission of those offenses. As reformed, we affirm the trial court's judgments in the aggravated robbery cases. We also affirm the trial court's judgment in the aggravated sexual assault case.