Opinion
No. 05-03-01548-CR
Opinion issued August 24, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-52722-IV. Affirmed.
OPINION
Appellant Johnny Serna appeals his automatic life sentence after a jury found him guilty of capital murder. Appellant raises only one issue: improper closing jury argument by the State at the guilt-innocence phase of trial. Concluding no reversible error has been shown, we affirm. We first set out a few relevant facts. There was a long history of "bad blood" between appellant and Kevin Butler, the decedent. At one time appellant had worked for the decedent. On one occasion the decedent paid appellant with a $30 check. Appellant altered the check to read $300 and cashed it. About two weeks before the murder, appellant and the decedent had "exchanged words" about this. One witness described the decedent's relationship with appellant as "bad, confrontational, belligerent, not very good." On December 24, 2001, appellant and his brother, Daniel Torres, were sitting on the porch of their mother's house drinking and talking. Apparently the subject of appellant's problems with the decedent was mentioned. Torres asked appellant if he was still bothered about the earlier confrontation with the decedent. When appellant said he was, the two brothers agreed to go to the decedent's house and "kick his ass." The decedent lived nearby. When the two brothers walked into the decedent's front yard, the decedent asked them if they were there to steal from him. Appellant reacted to that comment by hitting the decedent in the face. A fight ensued which moved onto the porch and, eventually, Torres dragged the decedent inside the house. Both brothers hit and kicked the decedent numerous times. The decedent was also stabbed multiple times. Appellant went though the house looking for something to steal. He later admitted taking change from a vase in the kitchen. While in the kitchen appellant saw Torres grab a knife. Appellant returned to the living room where the decedent was and continued to "stomp and kick" him. He only stopped when Torres slit the decedent's throat with a knife. Thereafter, appellant went around the house a second time looking for something to steal. When he saw the lights of the decedent's pickup come on, he went outside, got in the truck, and Torres drove him to a friend's house where Torres dropped him off. One of the decedent's oldest and best friends, Michael Denardo, discovered his body when Denardo went to the decedent's house to check on him because he had not shown up for Christmas dinner as expected. Denardo arrived to find the front door of decedent's house open, the lights on, and his truck gone, which Denardo thought was unusual. When he went inside Denardo saw the decedent on the floor, covered, and first thought he was sleeping. Upon investigation, however, he discovered his friend was dead. Denardo described his best friend as being "tied up like a slaughtered pig" with his hands bound behind his back, a big hole in the side of his head, and multiple stab and "slash type" wounds on his body. The autopsy report was admitted into evidence. It showed the decedent died of both "blunt force" and "sharp force" injuries. The evidence also showed four knives were found at the scene. One was found underneath the decedent's body in the living room, another in the living room near the body, one in the kitchen, and one outside. Torres's DNA was retrieved from the handles of the two knives found in the living room. Appellant's DNA was not found on any of the knives. Appellant's written confession was admitted into evidence. In it appellant confessed only to "kicking and hitting" the decedent; he said Torres slit the decedent's throat with a knife. Appellant complains on appeal that the State insinuated that appellant also used a knife during the murder even though his DNA was not found on any of the knives. Appellant contends the State's argument was improper because it was outside the record and was unsupported by any expert testimony at trial. The State responds that appellant's issue should be resolved against him for three reasons: (i) error was not properly preserved because appellant's trial objection was not sufficiently specific to preserve error; (ii) the challenged argument was a reasonable deduction from the evidence; and (iii) any error was harmless. The record reflects the State's argument and appellant's response, as follows:
[PROSECUTOR]: . . . Do you think that all four of these knives were from Daniel Torres? Of course not. Just because there's no DNA on the other two knives doesn't mean that Johnny Serna didn't handle them. Because there would be a very small amount of DNA left at the scene that's not comparable.
[DEFENSE COUNSEL]: Judge, I'm going to object to that as outside the record and no expert testimony to support that statement to the jury.
THE COURT: Overruled. Jury argument.Appellant contends there is neither evidence nor a reasonable deduction from the evidence that appellant used or exhibited a knife in the commission of the offense. Appellant points to his written confession stating Torres was the only one who used a knife on the complainant, and the lack of any expert testimony that an individual could hold a knife in his hand and not leave any DNA or insufficient DNA for testing. Appellant also asserts that the challenged argument was neither invited argument nor a permissible plea for law enforcement. Concerning harm, appellant states only that "Appellant was harmed by the State's improper jury arguments." During the State's closing argument before the complained-of statement was made, the following unobjected-to arguments were presented:
[PROSECUTOR]: . . . And don't you know both of them, Daniel Torres as well as Johnny Serna, are on top of him, cutting him, beating on him, kicking and stomping him.
* * *
They dragged him into the house and that's when it all happened. They got him down on the floor. The first thing they did was grab some knives. (emphasis added)After the appellant objected to the State's "DNA argument," the record shows the following unobjected-to arguments:
[PROSECUTOR]: So how did the knives come into play? Who went and got the knives? I would submit to you that either [the decedent] got slain by four of these knives but they don't have blood on them, but that two of the knives were touched by Daniel Torres. And the other two, where did they come from? There's two other knives in the sink that are a part of a matching pair. I think you can tell. They probably used one knife on him and it bent, because some of those knives are even bent. . . . Then they went back and got more knives. So who's getting all these knives in the meanwhile while Kevin's on the floor? . . . They go in the kitchen and get the knives and come back and start cutting and stabbing on him. And then we know that Johnny Serna went to the kitchen. . . . Don't you know that he went into the kitchen and also brought back some knives to help him in the cutting and stabbing of Kevin Butler? . . . So where do the other three knives come from? Who got the other three knives? . . . So someone got the other knives. And who is that? Johnny Serna.
* * *
So all in all, the evidence points directly to Johnny Serna. Sure, we'd like to have the luxury of having DNA in the case like it was on Daniel Torres. But just because there's no DNA doesn't mean that Johnny Serna wasn't involved in this case and didn't touch those knives and participate in the cutting and the stabbing. (emphasis added)In Fuentes v. State, 991 S.W.2d 267 (Tex.Crim.App. 1999), after instructing the jury with the Geesa definition of reasonable doubt in the written charge, the trial court orally made additional comments about reasonable doubt, to which the defense objected. Id. at 273. The trial court overruled the objection and reiterated its comments, without a further objection from the defense. Citing Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991), the court of criminal appeals held that "[i]n order to preserve error, the objecting party must continue to object each time the objectionable evidence is offered," and by not doing so appellant waived any complaint as to the trial court's remarks. Fuentes, 991 S.W.2d at 273. Even if appellant's objection was sufficiently specific, because appellant only initially objected to the State's "DNA argument" and did not object to other similar arguments both before and after the complained-of argument, appellant has waived error. Id.; Dickerson v. State, 866 S.W.2d 696, 699 (Tex. App.-Houston [lst Dist.] 1993, pet. ref'd) (holding that where appellant did not continue to object to objectionable argument, error was not preserved.). Moreover, even assuming arguendo, the State's argument was improper, preserved, and not waived, any error would be harmless. As nonconstitutional error, improper jury argument must be disregarded unless it affects appellant's substantial rights. See Tex.R.App.P. 44.2(b). An improper statement affects a substantial right when it has a substantial and injurious effect or influence in determining the jury's verdict. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). In Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998) (op. on reh'g), the Court set out factors to consider in making this determination: (i) severity of the State's remarks; (ii) curative measures taken; and (iii) certainty of conviction without the misconduct. Id. at 259. Inasmuch as the objection was overruled and no curative measures were taken, we consider only factors one and two. The alleged misconduct was not severe. Further, without the alleged misconduct, appellant's conviction was almost certain in light of evidence the decedent died of both "blunt force" and "sharp force" injuries and appellant's confession that he kicked decedent in the head numerous times. Additionally, because similar arguments were made, without objection, both before and after the complained-of argument, it cannot be said the complained-of argument affected appellant's substantial rights. We resolve appellant's issue against him. Finding no reversible error, we affirm.