No. 11-04-00103-CR
Opinion filed April 6, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 70th District Court Ector County, Texas, Trial Court Cause No. a-30,844.
Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
TERRY McCALL, Justice.
The jury convicted appellant, Jacoby Dominique Williams, of the first degree felony offense of aggravated robbery and assessed his punishment at fifteen years confinement and a fine of $5,000. We affirm.
Background Facts
On June 29, 2003, appellant and his brother stole beer from a convenience store in Odessa. They later returned to the store and took money from the cash register. During the commission of the offense, appellant and his brother assaulted the store clerk. They punched the clerk in the face and chest and knocked him to the floor. Appellant and his brother then proceeded to kick and stomp him. Despite the clerk's pleas for them to stop the beating, appellant and his brother continued the attack for about three minutes. The attack resulted in the clerk suffering serious injuries. In a separate trial, appellant's brother pleaded guilty to the offense of aggravated robbery. The jury assessed his punishment at fifty-five years confinement. In this case, appellant pleaded not guilty to the aggravated robbery charge. After the jury found appellant guilty of the offense, the case proceeded to the punishment phase. During jury argument in the punishment phase, the State argued that the jury should sentence appellant to a minimum of thirty years confinement in prison. Appellant's counsel asked the jury to consider a probated sentence. The jury assessed appellant's punishment at fifteen years confinement. Issue on Appeal
In his sole appellate issue, appellant contends that the State made an improper jury argument during the punishment phase of the trial. Specifically, appellant complains about the following comment: [PROSECUTOR]: If he wants a GED and learned [sic] how to drive a truck, and dental care, he can get all that in the pen.
[DEFENSE COUNSEL]: Your Honor, I'm going to object. That's outside the record.
[THE COURT]: Overruled.
[PROSECUTOR]: They provide all of that stuff for him. Free of charge — well, not free to him.
On appeal, appellant argues that the trial court erred in overruling his objection to the State's jury argument because the State's comment presented matters not in evidence. Jury Argument Issues
To be proper, the State's jury argument must fall into one of the following four categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App. 1992); Esquivel v. State, 180 S.W.3d 689, 692 (Tex.App.-Eastland 2005, no pet.). The record does not contain any evidence about educational or dental care opportunities in prison, and the State admits that its comment presented matters outside the record. However, the State contends that its comment was proper because "the fact that inmates can get education and health care in [prison] is common knowledge among the general public who watch television or read the newspapers." We need not determine whether the State's comment was proper because, even if the comment was improper, the record shows that the comment did not harm appellant. Improper jury argument by the State constitutes nonconstitutional error. Esquivel, 180 S.W.3d at 693. Thus, if the State's jury argument exceeds the bounds of proper argument, the trial court's erroneous overruling of a defendant's objection to the argument is not reversible error unless it affected appellant's substantial rights. TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). A substantial right is affected and reversible error is committed when the error had a substantial and injurious effect or influence in determining the jury's verdict. Esquivel, 180 S.W.3d at 693. In determining whether the defendant's substantial rights have been affected, we balance the following factors: (1) the severity of the misconduct (prejudicial effect); (2) curative measures; and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004) (citing Martinez, 17 S.W.3d at 693-94); Burkett v. State, 179 S.W.3d 18, 30 (Tex.App.-San Antonio 2005, no pet.). The first factor concerns the severity of the misconduct and focuses on the prejudicial effect of the comment. Hawkins, 135 S.W.3d at 77. The State's comment about education and dental care in prison was brief. The State's jury argument is about nine pages long in the reporter's record. The comment complained about by appellant was one sentence of these nine pages. After the trial court overruled appellant's objection, the State briefly commented on the subject matter again. The State's jury argument did not focus on education and dental care in prison. Rather, the argument focused on the violent nature of the crime, appellant's ongoing problems with alcohol and marihuana abuse, and appellant's total lack of concern for the victim. The State commented on evidence from the trial establishing that appellant and his brother had attacked and beaten the victim, that they had seriously injured the victim, that the victim was defenseless, that appellant and his brother continued beating the victim even though the victim begged them to stop, that appellant and his brother continued the attack for about three minutes, and that appellant showed no concern for the victim during or after the attack. The State argued that appellant deserved a sentence of at least 30 years in prison. Because the State's comment about education and dental care was brief and because the State did not focus on the comment during its argument, we find that the comment was unlikely to prejudice appellant. Therefore, the first factor weighs in the State's favor. The second factor concerns curative measures taken by the trial court. In this case, the trial court did not take any curative measures because it overruled appellant's objection to the State's argument. However, the State did not emphasize the comment about education and dental care. Therefore, the second factor does not weigh heavily against the State. The third factor concerns the likelihood of the same punishment being assessed absent the State's comment about education and dental care in prison. The evidence established that appellant committed a violent crime, causing the victim to suffer serious injuries. As detailed above, the State's jury argument focused on the nature of the crime, appellant's ongoing substance abuse problems, and appellant's total lack of concern for the victim. Given the evidence set forth above in the analysis of the first factor, we find that the jury would have assessed the same punishment in the absence of the State's comment about education and dental care in prison. The jury wanted to sentence appellant to a lengthy prison term instead of the probation requested by appellant. Therefore, the third factor weighs heavily in favor of the State. In Esquivel, the jury convicted Esquivel of the offense of indecency with a child. During the punishment phase of the trial, Esquivel presented testimony from a community supervision officer that, if the jury placed Esquivel on community supervision, Esquivel would be required to attend sex offender counseling. Although there was no evidence regarding the availability of sex offender counseling in prison, the prosecutor made comments during jury argument suggesting that Esquivel could receive sex offender counseling in prison. The trial court overruled Esquivel's objection that the State's argument was outside the record. Esquivel, 180 S.W.3d at 692-93. The jury assessed Esquivel's punishment at three years confinement. Id. at 691. Based upon the length of the sentence (three years) in Esquivel, the jury could have recommended that Esquivel's sentence be probated. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(d)(1) (Vernon Supp. 2005) (providing that a defendant is not eligible for jury-recommended community supervision if the defendant is sentenced to a term of imprisonment that exceeds ten years). In Esquivel, this court noted that, in determining whether to recommend community supervision or to assess prison time, "whether Esquivel would receive help in the form of sexual counseling would be a key consideration." Esquivel, 180 S.W.3d at 693. In framing the punishment issue, the State had asked the jury whether it wanted Esquivel in prison or out on the streets while he was getting counseling, even though there was no evidence that counseling was available to prison inmates. Id. This court stated that, by suggesting Esquivel could receive counseling in prison, the State had suggested that it did not matter, as far as counseling was concerned, whether the jury recommended community supervision or assessed prison time. We held that the State's argument, which addressed a key consideration and which was not supported by evidence, had a substantial and injurious effect or influence in determining the jury's verdict and, therefore, affected Esquivel's substantial rights. Id. This case is distinguishable from Esquivel. Because the jury's sentence of appellant exceeded ten years, appellant was not eligible for jury-recommended community supervision. Article 42.12, section 4(d)(1). The jury did not have to choose between community supervision and prison time for appellant. Whether appellant could get a GED, truck driver training, and dental care in prison were not key considerations in determining appellant's sentence. The State's comment about education and dental care did not harm appellant. We overrule appellant's sole issue. This Court's Ruling
The judgment of the trial court is affirmed.