Opinion
No. 05-02-00787-CR.
Opinion Filed February 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-00177-M. AFFIRMED.
OPINION
Jack Turner appeals his conviction for robbery. After finding appellant guilty and hearing his plea of true to one enhancement paragraph, the jury assessed punishment at fifteen years confinement and a $1500 fine. In eight points of error, appellant argues the trial court erred by (1) admitting a photograph of the victim taken two weeks after the robbery; (2) admitting "extraneous act" evidence of defendant's conduct at his post-arrest jail book-in; (3) admitting hearsay evidence of the deceased victim; (4) excluding appellant's requested instructions on the law of self-defense and resisting arrest; and (5) overruling appellant's objection to the State's "community expectation" argument. Appellant also argues the evidence is legally and factually insufficient to support his conviction. For reasons that follow, we overrule appellant's eight points of error and affirm the trial court's judgment.
We are aware that this Court now resolves issues, but because appellant's brief refers to points of error, we use the term "point of error." See Tex. R. App. P. 38.1(e).
Factual and Procedural Background
On July 30, 2001, Luther Davis picked up his brother, Don Davis, from work at a Dallas Independent School District warehouse in South Dallas. Don, a sixty-one year old man who was ill with terminal cancer, could no longer drive. As Luther drove up, he noticed appellant standing with Don. Don opened the passenger-side door while appellant stood behind him. Don told Luther that appellant had offered to sell him a gun. Don, who was taking painkilling medicine at the time, then opened his wallet to display a large amount of cash. Appellant leaned into Luther's truck and asked if he was a police officer. Luther said he was not. Appellant then shoved Don into the side of the truck and onto the ground, grabbed his wallet, and ran through a nearby apartment breezeway and out of Luther's sight. After Luther checked on Don, he chased appellant. Luther came across Charles Bolden, a bystander who pointed to the second floor of the apartment complex and said something to Luther that he did not understand. Luther then ran back to the other side of the building when he noticed appellant running away with Bolden in close pursuit. After a short chase, Bolden tackled appellant. Luther quickly ran up and restrained appellant's feet with a torn t-shirt. During the struggle, appellant bit Luther and punched him in the face, resulting in a black eye and cut nose. Dallas police officer Marshall McLemore arrived fifteen minutes later and found between $400 and $500 in appellant's possession. He also found Don's empty wallet in a second floor apartment. Appellant had to be physically placed in McLemore's patrol car. At the station, appellant continued to disobey officers. During the book-in process, appellant struggled with officers and had to be restrained. McLemore sustained a bite in the leg from appellant. At trial, appellant pleaded not guilty to the charge of robbery. Don Davis was unavailable to testify, having died of his illness before trial.Legal and Factual Sufficiency of the Evidence
In his first point of error, appellant argues the evidence is legally insufficient to support his conviction for robbery. In his second point of error, appellant contends the evidence is factually insufficient to support his conviction.A. Standard of Review
1. Legal Sufficiency Appellate review of legal sufficiency is limited to determining whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In reviewing the sufficiency of the evidence, we consider all of the evidence, whether or not properly admitted. Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); see also Johnson v. State, 967 S.W.2d 410, 411-12 (Tex.Crim.App. 1998). The fact finder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.).2. Factual Sufficiency
When reviewing the factual sufficiency of the evidence, we review all the evidence, but not in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996). In conducting this analysis, our duty is to examine the jury's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the jury's findings to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Unless the record clearly reveals a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimony. Id. at 8. We reverse only if (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. at 11. A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997).B. Applicable Law
A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he "(1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Pen. Code Ann. § 29.02 (Vernon Supp. 2003). A person commits "theft" if he unlawfully appropriates property with intent to deprive the owner of the property. Id. § 31.03(a). "In the course of committing theft" includes conduct that occurs "in immediate flight after the commission of the offense." Id. § 29.01(1).C. Application of Law to the Facts
1. State's Evidence The State presented testimony from Luther Davis and Officer McLemore. Luther testified that on July 30, 2001, he went to pick his brother up from work. Appellant was standing with Don, who told Luther appellant had offered to sell him a gun. Appellant asked Luther if he was a police officer, and Luther said he was not. Appellant then grabbed Don's wallet and shoved him to the ground. Appellant ran away, while Luther pursued. Charles Bolden, a bystander, joined the chase and was able to tackle appellant. Luther helped restrain appellant by tying his feet together with a torn t-shirt. Appellant bit Luther and punched him in the face, causing a black eye and cut nose. McLemore testified he responded to the call involving appellant and Don Davis. When he arrived, McLemore found three men standing around appellant, whose legs were bound by a t-shirt. He placed handcuffs on appellant and attempted to put him in his squad car. Appellant refused and another officer had to assist McLemore in physically placing appellant in the car. McLemore testified he recovered about $400 from appellant and returned it to Don. He also recovered Don's empty wallet from a second floor apartment.2. Defense Evidence
The only defense testimony was from appellant himself. Appellant testified he was selling dope in the area, when he came across Don waiting for his brother. Appellant stated that Don purchased $300 or $400 worth of crack cocaine from him. Appellant testified that Don then asked him to get a prostitute, giving him another $150 to $200. Appellant admitted he did not intend to find a prostitute for Don and was just going to take the money. Appellant then claimed he told Don he had a gun for sale, but Don only wanted the prostitute. Appellant testified that at that point he walked away. Suddenly, according to appellant, Don started screaming that he had been robbed. Appellant began running, knowing he was being chased. Appellant said the man who tackled him was a drug dealer. Lastly, appellant admitted punching Luther, but claimed it was in self-defense because Luther was punching him in the face.3. Comparing the Evidence
Appellant contends there is insufficient evidence to sustain his conviction because the testimony presented by Luther and the testimony of appellant were "marked by such a variance in the description of the events" that it made Luther's description of appellant's conduct "highly suspect and very unreliable." Appellant essentially asks this Court to judge the credibility of the witnesses. The jury, however, is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones, 944 S.W.2d at 647. As to legal sufficiency, viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant, in the immediate flight after committing the theft of Don Davis's wallet and with intent to maintain control of the wallet, intentionally, knowingly, or recklessly caused bodily injury to Luther Davis. Also, as to factual sufficiency, we conclude the evidence is not so weak that the jury's verdict was clearly wrong and unjust, nor is the verdict so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we overrule appellant's first and second points of error.Trial court's Evidentiary rulings
In his third point of error, appellant argues the trial court erred by overruling his objection to a photograph of the victim taken two weeks after the robbery occurred. In his fourth point of error, appellant contends the trial court erred by overruling his objection to extraneous act evidence regarding his conduct during the police book-in after his arrest. In his fifth point of error, appellant argues the trial court erred by overruling his objection to the hearsay statement of the victim.A. Standard of Review
We review a trial judge's decision to admit evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Thus, absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). As long as the trial court's ruling is within the zone of reasonable disagreement, an appellate court will not disturb that ruling. Feldman v. State, 71 S.W.3d 738, 755 (Tex.Crim.App. 2002).B. Applicable Law
1. Relevance Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Generally, all relevant evidence is admissible. Tex. R. Evid. 402. Rule 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403.2. Photographs
With regard to photographs, generally a court considers a number of factors to determine whether the danger of unfair prejudice substantially outweighs the probative value, including the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, and whether a person is naked or clothed. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim. App. 1999) (citing Long v. State, 823 S.W.2d 259, 272 (Tex.Crim. App. 1991)). A court, however, should not be limited by this list. Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim. App. 1996). Instead, the court must consider the availability of other means of proof and the circumstances unique to each individual case. Id. Generally, a photograph is admissible if oral testimony as to matters depicted in the photograph is also admissible. Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim. App. 1997). Visual photographic evidence is not necessarily cumulative of oral testimony; it can give the fact-finder a point of comparison to test the credibility of witnesses and the validity of their conclusions. Chamberlain, 998 S.W.2d at 237.3. Extraneous Act Evidence Preservation of Error
Evidence of other crimes, wrongs, or acts of a defendant is not admissible unless it is relevant to prove some issue other than the defendant's criminal character. Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1990) (op. on reh'g)). Such "other" issues include, but are not limited to: identity, intent, motive, opportunity, preparation, and absence of mistake or accident. Montgomery, 810 S.W.2d at 388. However, to properly preserve an issue for appellate review, a party must make a timely, specific objection to the trial court. Tex. R. App. P. 33.1; Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). In addition, the complaint on appeal must comport with the objection at trial. Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986); Empty v. State, 972 S.W.2d 194, 197 (Tex.App.-Dallas 1998, pet. ref'd). If an objection at trial differs from the complaint on appeal, nothing is preserved for our review. Martinez v. State, 867 S.W.2d 30, 40 (Tex.Crim.App. 1993).4. Hearsay
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). Evidence rule 802 states that hearsay is not admissible except as provided by statute or the rules of evidence. Tex. R. Evid. 802. Evidence rule 803(2) provides that statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" are not excluded by the hearsay rule. Tex. R. Evid. 803(2). When determining whether a statement is an excited utterance under rule 803(2), the pivotal inquiry is "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event." McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex.Crim.App. 1994).C. Application of Law to the Facts
1. Don Davis's Photograph At trial, the State introduced three photographs depicting Don Davis's deteriorating appearance over the sixth months preceding his death. Two photographs, State's exhibits two and three, showed Don's appearance between three-and-one-half months and one month before the robbery. State's exhibit four, however, was taken on August 15, 2001, and showed a close-up of Don's face two weeks after the incident. Appellant argues the trial court erred by overruling his objection to State's exhibit four, claiming the photograph "was irrelevant to any issue and prejudicial in its attempt to inflame the jury." We disagree. State's exhibit four was relevant to show Don's appearance after the robbery. Luther had already testified as to Don's terminally ill condition at the time of the offense; the picture was thus relevant to the jury's consideration of whether the crime was a result of appellant's "preying upon" a weakened individual. See Williams, 958 S.W.2d at 195. It was also particularly relevant for the jury's consideration of whether Don was the type of individual that would have been purchasing prostitutes and large quantities of crack cocaine, as appellant's testimony suggested. Having determined the evidence was relevant, we further conclude the probative value of State's exhibit four was not outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. State's exhibit four was one picture in a sequence of three. The photograph was by no means gruesome, nor does its detail, size, or color suggest that it would inflame the jury. Although the photograph was a close-up, we consider the availability of other means of proof and the circumstances unique to each individual case. See Chamberlain, 998 S.W.2d at 237. The jury had no other way to evaluate Don's appearance at or near the time of the robbery. The photograph was taken only two weeks after the crime occurred, and Don lived for several more months. If he had been available to testify, his testimony regarding his weakened physical condition would have been admissible. We conclude the trial court did not abuse its discretion. Accordingly, we overrule appellant's third point of error.2. Extraneous Act Evidence
Appellant next contends the trial court erred by allowing the State to introduce McLemore's testimony as to appellant's belligerent conduct and non-cooperation during the police book-in after his arrest. Initially, although the State did not raise the issue in its brief, we note that appellant's objection at trial does not comport with his argument on appeal. At trial, appellant objected, without specifying the grounds, to the State questioning McLemore, "Did anything unusual happen during the book-in procedure?" After the trial court sustained the objection, the State asked the follow-up question, "At some point in time does the defendant become more difficult during this process?" When McLemore responded affirmatively, the State asked, "Can you explain how he became difficult?" Appellant objected by stating, "Your Honor, I would submit that this is irrelevant." Once again, the court sustained the objection and this time instructed the jury to disregard. However, after a sidebar conference the court "reversed itself" and allowed the State to proceed with the questioning. Appellant then stated to the court, "Please note our exception." On appeal, appellant argues the testimony as to his conduct during the book-in procedure was inadmissible "extraneous act" evidence introduced solely to show character in conformity. Appellant's trial objection was that the book-in evidence was irrelevant, not that it placed an inadmissible extraneous offense before the jury. Because appellant's complaint on appeal differs from his objection at trial, we conclude this point has not been properly preserved for our review. Nevertheless, even if appellant had preserved error on this issue, and assuming without deciding that the trial court committed error in admitting McLemore's testimony as to appellant's belligerent conduct, we conclude any error was harmless. If the trial court commits error in admitting evidence, we are required to make an analysis of the question of harm to an appellant because the admission of evidence is not constitutional error and its admission does not affect a substantial right requiring reversal. See Tex. R. App. P. 44.2(b). To assess harm under appellate rule 44.2(b), this Court must review the record to determine whether the error had a substantial and injurious effect or influence on the jury's determination. King v. State, 953 S.W.2d 266, 271 (Tex.Crim. App. 1997). The evidence established at trial showed that appellant was standing with the victim, Don Davis, to whom appellant had offered to sell a gun. After Don displayed a large amount of money, appellant grabbed Don's wallet, shoved him to the ground, and ran away. Even in appellant's version of the events, he committed theft. While Bolden and Luther attempted to restrain appellant, appellant bit Luther and punched him in the face. Appellant's testimony likewise confirmed this. Thus, appellant's own testimony conclusively established every element necessary for the robbery conviction. When the complained-of line of questioning as to appellant's resistence to police requests during the book-in procedure is examined in combination with all of the other evidence presented by both the State and appellant, we cannot conclude it had a substantial and injurious effect or influence on the jury's determination of guilt. Thus, we conclude the error, if any, was harmless. Accordingly, we overrule appellant's fourth point of error.3. Hearsay
Appellant next argues the trial court erred by overruling his objection to a hearsay statement of the victim, Don Davis. During redirect examination, the State wanted to ask Luther Davis to repeat what Don said to him after appellant had pushed him down-that the money appellant had stolen was "all he had in the world." Appellant objected and asked to take Luther on voir dire. Then, in several questions by both the State and appellant, both in and out of the presence of the jury, Luther testified to the following: (1) Don was under the stress or excitement of a startling event or condition; (2) Don made the statement immediately after he had been pushed down; and (3) Don had simply spontaneously made the statement. Appellant contends Don's statement "did not meet any allowable hearsay exception." We disagree. Luther's testimony shows conclusively that Don was clearly "still dominated by the emotions, excitement, fear, or pain" of the theft of his wallet when he immediately thereafter made the complained-of statement. See McFarland, 845 S.W.2d at 846. We conclude the trial court did not abuse its discretion by admitting this testimony as an excited utterance exception to hearsay. Accordingly, we overrule appellant's fifth point of error.Jury Charge Error
In his sixth point of error, appellant argues the trial court erred by overruling his objection to the jury charge not containing an instruction on the law of self defense. In his seventh point of error, appellant contends the trial court erred by overruling his objection to the jury charge not containing an instruction on the law of resisting arrest. Initially, the State responds by arguing that appellant has inadequately briefed these points. Alternatively, the State contends the trial court did not err, and, even if it did, the error was harmless.A. Standard of Review
We examine jury charge error under the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984). When reviewing a challenge to the jury charge, we must first determine whether error actually exists in the charge. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). In determining whether error exists, we examine the charge as a whole, considering the workable relationship between the abstract paragraphs of the charge and those applying the abstract law to the facts of the case. Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997); Caldwell v. State, 971 S.W.2d 663, 666 (Tex.App.-Dallas 1998, pet. ref'd). If we determine the charge contains error, and the defendant specifically objected to the error at trial, we reverse if the error was calculated to injure the rights of the appellant, which means no more than that there must be some harm to the accused from the error. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994); Almanza, 686 S.W.2d at 171. In determining whether the error was harmful and reversal is required, an evidentiary review must be conducted, as well as review of any part of the record as a whole that may illuminate the actual, not just theoretical, harm to the accused. Arline, 721 S.W.2d at 351; Almanza, 686 S.W.2d at 174. For this review, the presence of actual harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. Almanza, 686 S.W.2d at 171. If any harm is found after conducting this review, then reversal is required. Abdnor, 871 S.W.2d at 732.B. Applicable Law
1. Inadequately Briefed Points of Error A brief to this Court must contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Failure to provide substantive analysis constitutes a waiver of one's appellate issues. See Salazar v. State, 38 S.W.3d 141, 147 (Tex.Crim.App. 2001).2. Self Defense
A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Clifton v. State, 21 S.W.3d 906, 907 (Tex.App.-Fort Worth 2000, pet. ref'd). If the evidence raises the issue of self-defense, the accused is entitled to have an instruction on the defense submitted to the jury. Riddle v. State, 888 S.W.2d 1, 6 (Tex.Crim.App. 1994). The defendant has the burden to come forward with such evidence. Clifton, 21 S.W.3d at 907. If the defendant meets this burden of producing evidence, the right to the instruction inures to him regardless of whether the evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think of the credibility of the testimony. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996); Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991) (op. on reh'g). However, if the evidence viewed in the light most favorable to the defendant does not establish self-defense, the defendant is not entitled to an instruction on the issue. Clifton, 21 S.W.3d at 907 (citing Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App. 1984)).3. Lesser Included Offenses
An offense is a lesser included offense if (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon Supp. 2003). Article 37.09 contemplates a comparison of the elements of the charged offense and the elements of the offense urged as a lesser included offense, not the evidence adduced at trial. Jacob v. State, 892 S.W.2d 905, 907-08 (Tex.Crim.App. 1995).C. Application of Law to the Facts
1. Inadequately Briefed Points Appellant's brief on points of error six and seven consists mainly of his objection and the trial court's subsequent ruling, as quoted directly from the record. However, he makes only two statements with respect to legal arguments on the issues raised by points of error six and seven. His brief states, "It has long been the accepted rule in Texas criminal trials that an accused is entitled to an affirmative instruction on the law as to every defensive issue raised by the evidence even though such issue to raised [sic] by the testimony alone." Appellant cites Boget v. State, 40 S.W.3d 624 (Tex.App.-San Antonio 2001), ostensibly in support of his statement. Appellant then states, "The trial court erred in denying appellant his right to present his defenses before the jury and this had a substantial effect on appellant's right to a fair trial." We find that appellant has not presented a "clear and concise argument." He fails to explain why he was entitled to an instruction on self-defense and resisting arrest. Appellant also does not explain how Boget v. State, which involved an appeal from a conviction for criminal mischief, applies to the facts of his case. Finally, appellant fails to address the question of whether the alleged error in failing to include his requested instructions resulted in any harm. See Payne v. State, 11 S.W.3d 231, 231-32 (Tex.Crim.App. 2000) (error in failure to instruct jury on voluntariness of conduct subject to Almanza harm analysis). We conclude the points of error are inadequately briefed and present nothing for review. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000) (holding appellant failed to adequately brief points of error regarding omission of instructions in jury charge). Nevertheless, even if we assumed appellant had sufficiently briefed these points, we would overrule them.2. Merits of Appellant's Points of Error
a. Self-Defense Instruction Assuming, without deciding, that the court erred by failing to instruct on self-defense, we conclude the record does not demonstrate that the error was calculated to injure his rights. After conducting an evidentiary review of the entire record, we cannot see how appellant has suffered any actual harm, as opposed to just theoretical harm. See Arline, 721 S.W.2d at 351; Almanza, 686 S.W.2d at 174. The evidence against appellant was overwhelming. Moreover, even if appellant's version of the events were true, his own testimony established that (1) he committed theft, and (2) in immediate flight after committing the theft, with intent to maintain control of the property, he either intentionally, knowingly, or recklessly caused bodily injury to another. Therefore, appellant has failed to show how any error in failing to instruct the jury on self-defense was calculated to injure his rights. Accordingly, we overrule his sixth point of error.b. Lesser Included Offense Instruction
Next, we consider whether resisting arrest is a lesser-included offense of robbery. In order to establish the charged robbery offense in this case, the State was required to prove that appellant (1) in the course of committing theft, (2) with intent to obtain or maintain control of the property, (3) intentionally, knowingly, or recklessly caused bodily injury to another. Tex. Pen. Code Ann. § 29.02 (Vernon Supp. 2003). On the other hand, if the State wanted to prove resisting arrest, it would have been required to show that appellant (1) intentionally (2) prevented or obstructed (3) a person he knew to be a peace officer or a person he knew to be acting in a peace officer's presence and at his direction (4) from effecting appellant's arrest (5) by using force against the peace officer or another. Id. § 38.04. We conclude resisting arrest is not a lesser included offense of robbery because the offenses require different elements of proof. First, we cannot say that resisting arrest may be proved by "the same or less than all the facts" required to establish robbery. Second, resisting arrest does not differ from robbery only in the respect that a less serious injury or risk of injury to the same person suffices to establish its commission. Third, resisting arrest does not differ from robbery only in the respect that a less culpable mental state suffices to establish its commission. Finally, resisting arrest does not consist of an attempt to commit robbery. Therefore, resisting arrest is not a lesser included offense of robbery as defined by article 37.09. Accordingly, we overrule appellant's seventh point of error.Improper Jury Argument
In his eighth point of error, appellant argues the trial court erred by overruling his objection to the prosecutor's "community expectation" jury argument.A. Applicable Law
Permissible jury argument falls within one of four general areas: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) pleas for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App. 1997). To constitute reversible error, jury argument must be extreme or manifestly improper or inject new and harmful facts into evidence. Dooley v. State, 65 S.W.3d 840, 843 (Tex. App-Dallas 2002, pet. ref'd). An argument by the State as to the impact of the jury's verdict on the community is allowable as a proper plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 56 (Tex.Crim.App. 1990). State arguments regarding the impact of a the jury's verdict on narrower groups making up the "community" are permissible in that the jury is reminded of the effect their verdict may have on the rights of a particular segment of the community. Id. B. Application of Law to the Facts During closing argument at the punishment stage of trial, the prosecutor made the following complained-of statement:Now here's something else we have to think about. Why do we have these laws in the first place? Could it be that we want to protect people who can't protect themselves? Could it be that people like Don Davis are exactly the people that we've got these laws for and why we want to protect them? What message does it send to the community if [appellant] can walk out of this courtroom? You're going to tell them that they should pick on the terminally ill because maybe they'll die and they won't be able to go to court.Appellant objected that this was "arguing community expectations for a verdict." The trial court overruled the objection and stated, "The State may make a plea for law enforcement." The trial court's ruling was correct. The State sought to remind the jury of the effect their verdict might have on the rights of "the community," which included the terminally ill. Furthermore, the statement was not extreme or manifestly improper, nor did it inject new and harmful facts into evidence. We conclude that the complained-of statement in the State's closing argument was a proper plea for law enforcement. Accordingly, appellant's eighth point of error is without merit. We affirm the trial court's judgment.