Whaley v. State

Full title: Lugene Demont Whaley, Appellant v. State of Texas, Appellee

Court: Court of Appeals of Texas, Eleventh District, Eastland

Date published: May 15, 2003

Nos. 11-02-00215-CR, 11-02-00216-CR, 11-02-00217-CR (Tex. App. May. 15, 2003)

Opinion

Nos. 11-02-00215-CR, 11-02-00216-CR, 11-02-00217-CR

May 15, 2003. Do not publish. See TEX.R.APP.P. 47.2(b).

Appeals from Dallas County.

Panel consists of: Arnot, C.J., and McCall, J., and Dickenson, S.J.⁷

7 Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

Opinion

BOB DICKENSON, SENIOR JUSTICE.

Lugene Demont Whaley entered pleas of guilty to three separate indictments for robbery, which are felonies of the second degree.¹ The jury assessed his punishment in each case at confinement for 15 years and a fine of $5,000.² We affirm the three convictions.

1 See TEX. PENAL CODE ANN. § 29.02 (Vernon 2003).

2 See TEX. PENAL CODE ANN. § 12.33 (Vernon 2003). The range of punishment for a felony of the second degree is confinement for not less than 2 nor more than 20 years. A fine of not more than $10,000 may also be imposed. All three periods of confinement will be served at the same time, and appellant was given credit for time in custody prior to trial.

The Three Indictments

The first indictment³ charged that, on or about December 26, 2001, while in the course of committing theft, appellant threatened Robert Pierce and placed him in fear of imminent bodily injury. The second indictment⁴ charged that, on or about December 25, 2001, while in the course of committing theft, appellant threatened Jerry Rhodes and placed him in fear of imminent bodily injury. The third indictment⁵ charged that, on or about October 29, 2001, while in the course of committing theft, appellant threatened Jose Cruz and placed him in fear of imminent bodily injury.

Relevant Testimony

Jose Cruz testified that he was 31 years old, that he was married, and that he had two children. Cruz testified that he was working in the early morning on October 29, 2001; that Mario Arrellano and Vicente Garcia were working with him; and that all three of them were robbed near Fair Park in the City of Dallas at about 7:00 a.m. They had been loading tar into the back of a truck. The tar was for the roofing on a construction site. Cruz testified that he picked appellant's photograph out of a photographic lineup, and he identified appellant as the person who showed him a pistol and asked for his wallet. Cruz testified that he was frightened and that he and his friends let appellant and appellant's companions take their wallets. Cruz said that it "looked like a real gun" and that he thought that "at any moment they could fire and kill [him]." Mario Arrellano testified that he was 26 years old and that "something scary" happened to him on October 29, 2001. He said that they were putting material into the truck when two men came up to them and that one of the men had a gun. Arrellano testified that this experience had changed his life and that he does not feel "secure." Vicente Garcia testified that he was 33 years old. At about 7:00 a.m. on October 29, 2001, they were loading some material on the truck when "two [men] came out with the gun in their hand and demanded our wallets." Garcia said that it was a "scary thing" and that it changed his life. He is "fearful" when he goes on the streets. Jerry Rhodes testified that he was 25 years old and that he edited commercials for television. Rhodes said that he had been with friends on Christmas Eve of 2001 and that he parked his car on the street near Fitzhugh and Bennett Streets in the City of Dallas. Rhodes identified appellant as the man who approached him on the street at about 3:00 a.m. on Christmas morning, first asking for directions, and then telling him to "empty out all [his] wallets." Rhodes said that it looked like "there was something" and that he thought appellant had a gun in his pocket. Rhodes said that he was "terrified" and that he did not know if he was going to see his family again. Rhodes said that appellant took his cash, cell phone, car keys, and checkbook. Robert Pierce testified that he was 62 years old, that he had just had part of one foot amputated because of medical problems, that he was on crutches, and that he had gone out to his car to get some medicine at about 9:00 p.m. on December 26, 2001. Pierce testified that, as he got back into the hallway to the apartment, somebody grabbed him from behind. There were two of them, one was jerking on the "little bag" from Parkland Hospital that had all of his medications, one was pulling on his hair, and they knocked his glasses off. Pierce testified that it was a "pretty scary situation" and that he "was in a great deal of fear." Pierce said that, when he started yelling, a neighbor across the hall stuck his head out the door. Then "they took off running." Pierce also said that he was knocked down to the floor. Officer Kelly White of the Dallas Police Department testified that he was working on December 26, 2001, at about 9:00 p.m. when he saw a red Cadillac with three black males. Officer White testified that he stopped the Cadillac for a traffic violation and that it fit the description of a vehicle which had been involved in robberies in that area. Officer White called for "cover" by another police officer. There were outstanding warrants on appellant and the other adult who was in the car. The officers searched the vehicle and found a Daisy B.B. gun pistol and a cigarette lighter which looked like a pistol. Officer White identified appellant as the driver of the Cadillac. Detective Phillip E. Jones of the Dallas Police Department testified about the statement which he took from appellant. The written statement was signed and verified by appellant at 12:15 a.m. on December 27, 2001. Detective Jones said that he gave all of the "Miranda" warnings,⁶ that appellant seemed to understand those rights, that appellant dictated the statement, and that appellant read the statement after it was written, making some corrections before he signed and verified it as his voluntary statement. Detective Jones first read the part of the confession where appellant talked about the "white guy on crutches." Appellant said in his statement that he stayed in the car while his two companions "jacked the man." Then Detective Jones read the part of the confession concerning the robbery at 3:00 a.m. on early Christmas morning. Appellant said in this part of his statement that they saw a "white guy standing near the sidewalk" near Live Oak Street near some apartments, that both of them got out of the car, that appellant's companion had the "cigarette lighter looking gun," and that appellant took the man's cell phone and keys. Finally, Detective Jones read the part of the statement concerning the robbery of the three men in October. Appellant said in this part of his statement that his companion used "one of the play guns" and that they "took their wallets." Appellant said in his statement that they got a total of about $40 and threw the wallets away. Detective Jones also read the part of the statement where appellant said that he did not mean for anyone to get hurt, that he had lost his job, and that he "needed cash to feed [his] kids." The State rested, and appellant called only one witness. Appellant's wife testified that he had never been convicted of a felony and that she would help him meet the conditions of community supervision. Appellant's wife testified that she did not know that he had committed the robberies.

Point of Error

Appellant presents only one point of error, and he argues the same point in all three appeals. That point reads in full as shown: The trial court erred by overruling the objection to an improper jury argument by the State.

The "Objection" and the Argument

The point of error refers to an incident during the State's closing argument to the jury. After thanking the jurors and asking them to "imagine what these victims must have been through," the prosecutor reminded the jurors that appellant had entered "guilty" pleas to the three indictments. The prosecutor also told the jurors why he thought they should not recommend community supervision in these cases. Relevant portions of the record read as shown:

[PROSECUTOR]: Now, I can . . . talk about some things I want you to think about back there. Let's think about robbery. . . . Why do I think it does deserve a 20-year sentence?

* * *

Think about the breaks we've already given this guy. Think about punishment. What are we looking at when we're looking at punishment? Aren't we looking at how much fear are you putting in the victims? You tell me, folks, that he wasn't using this as a deadly weapon, and putting it in the minds of those victims that he had a deadly weapon, and he would kill them. That's what we're here about. We're here about the punishment, about the fear of what it must feel like to have this stuck in your face or stuck to the side of your head.

* * *

You can't even go on the street at 7 a.m. and do your job without running into this guy. You can't go out on . . . Christmas Eve with your buddies anymore at night because he's still prowling. He's prowling 24/7. At 3 a.m. he's out. At 7 a.m. he's out. You can't even go to your car to get your medicine on your crutches.

* * *

Are you telling me they don't try to make them scared? This is a real gun. I'm going to shoot you. Then what? To drive around and see a man on crutches, a 62-year-old man on crutches. Well, you say to yourself, all right, robbery. Well if they actually used the deadly weapon, it's five to 99 years or life, if they used a real gun, five to 99 years or life. Knocked off 80 (sic) years. What about, you say, well, what [if] the Defendant had a prior conviction, and then it would be worse? No. Prior felony trip to the penitentiary, he's still looking at five to 99 years or life because it jumped up. Then you say to yourself —

[DEFENSE COUNSEL]: Judge, that's not true. It would be a minimum of 15 to life.

[PROSECUTOR]: No. Second degree, bump to one, five to 99.

[DEFENSE COUNSEL]: He was talking about aggravated robbery with a prior.

[PROSECUTOR]: No, no, no.

THE COURT: That would be 15.

[PROSECUTOR]: On a robbery, if you commit this right here, you say, well, what if the Defendant had a prior conviction, a prior trip, that would make it worse. Then he deserves 20. No. If he's been to the penitentiary before and committed this offense, five to 99 or life, the robbery. Then you look at he's putting in fear. You say, well, okay, wait a minute. What if they were seriously injured, serious bodily injury? Well, guess what? That's aggravated robbery, too, five years to 99 years or life. (Emphasis added)

Controlling Authority

In order to preserve a complaint for appellate review, the objection must be made with "sufficient specificity." TEX.R.APP.P. 33.1. A point of error which "does not comport with appellant's trial objection" preserves nothing for review. Harris v. State, 784 S.W.2d 5, 17 (Tex.Cr.App. 1989), cert. den'd, 494 U.S. 1090 (1990). The only complaint preserved by appellant's objection, "Judge, that's not true. It would be a minimum of 15 to life," relates to the State's argument that it had already knocked off 80 years (actually 79 years) by indicting appellant for robbery instead of aggravated robbery. The court actually agreed with appellant's counsel that the minimum penalty for "aggravated robbery with a prior" would be 15 years. See TEX. PENAL CODE ANN. § 12.42(c)(1) (Vernon 2003). There was no request for an instruction to disregard; the general rule is that, in order to preserve a claim of error during jury argument, "the defendant must object until receiving an adverse ruling." See, e.g., Harris v. State, supra at 12. Moreover, the prosecutor clarified his argument by making it clear that in this portion of the argument he was talking about robbery, "this offense," with a prior. A different portion of the State's argument discussed the punishment for aggravated robbery; and, in that portion, the State did not refer to a prior conviction. There is no showing that the trial court overruled an objection to any improper jury argument by the State. The State had the right to summarize the evidence and to make a plea for law enforcement. The record shows that the State did not "inject new and harmful facts." See, e.g., Shannon v. State, 942 S.W.2d 591, 597 (Tex.Cr.App. 1996). The sole point of error is overruled in all three appeals.

This Court's Ruling

The judgments of the trial court are affirmed.