Date issued September 26, 2002
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-01023-CR
____________
JACOB ALVIN SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 873209
O P I N I O N
Jacob Alvin Smith, appellant, was convicted of burglary of a habitation. (1) A jury found two enhancement paragraphs true and assessed punishment at 50 years confinement. We affirm.
Facts
At approximately noon on March 26, 2001, Arnold Thompson walked toward his house from his backyard. When Thompson was approximately 40 feet from his porch, he saw appellant step off the porch carrying two blankets that were tied and slung over his shoulder. Thompson recognized the blankets as blankets that belonged to him. When appellant saw Thompson, he ran across the street into a vacant lot. Thompson picked up a mop handle and chased appellant, and appellant stopped and confronted Thompson. Appellant reached into his pocket and said, "I'm fixing to cut your ass up."
Thompson's neighbor, Melvin Benjamin, saw the men and ran to Thompson's aid, carrying an ax handle. Benjamin saw appellant holding a knife. Appellant ran away, leaving the blankets and their contents. The items contained in the blankets were taken from Thompson's home.
For the next five evenings, Thompson drove through his neighborhood and searched for appellant. Thompson saw appellant, and he drove to the police station, informed police, and returned to that location with the police. Thompson identified appellant, and appellant was arrested. Officer Kira Webster conducted the follow-up investigation, and Thompson and Benjamin both identified appellant in a photo array.Voir Dire
In his second point of error, appellant argues that the trial court made improper statements during voir dire that informed the venire panel of his prior criminal record. Specifically, appellant contends the trial court's statements violated article 36.01(a)(1) of the Code of Criminal Procedure by indirectly informing the venire panel of the specific allegations contained in the enhancement paragraphs. Section 36.01(a)(1) prohibits reading an indictment's enhancement paragraphs before the punishment stage. (2) The trial court read the indictment during voir dire, but it did not read the enhancement paragraph of the indictment at any time prior to the punishment phase. The trial court, however, did make the following statement during voir dire:
Now, a burglary in Texas, as I said, is a second degree felony. So you're looking at a minimum of 2 years in prison all the way up to 20 years in prison and a fine may be assessed not to exceed $10,000.
In some cases, under some circumstances, if you had a Defendant who had one prior felony conviction, the minimum range then bumps it up to a first degree felony, which the minimum would be 5 years in prison, all the way up to 99 years or life and a fine of $10,000 may be assessed. If you had a person who had one prior felony conviction, and the way it works is, a person who had one prior felony conviction who had been to the penitentiary, served time, released from prison, and after that date committed this alleged offense, then they would be looking at that. It's called enhanced punishment range.
Appellant's trial attorney did not object to the trial court's statements.
In the absence of fundamental error, an appellant's failure to object waives his point of error on appeal. Cade v. State, 795 S.W.2d 43, 45 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd). A trial court commits fundamental error when the error directly and adversely affects the interest of the public generally, as such interest is declared in statutes or the constitution of the State. Heiman v. State, 923 S.W.2d 622, 624 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd). We therefore, consider whether informing the jury of the punishment range prior to the punishment stage constituted fundamental error.
Article 36.01(a)(1) of the Code of Criminal Procedure provides, in pertinent part:
The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.
Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon Supp. 2002). Appellant relies on Frausto v. State, 642 S.W.2d 506, 508 (Tex. Crim. App. 1982), for the proposition that the trial court's statement was the "functional equivalent" of the reading of the enhancement paragraph in violation of article 36.01(a)(1). We disagree.
When a jury is informed generally of the applicable range of punishment, without having been read the precise allegations for enhancement, article 36.01(a)(1) is not violated. Davis v. State, 630 S.W.2d 769, 772 (Tex. App.--Houston [1st Dist.] 1982, pet. ref'd). Here, the trial court stated that "[i]n some cases, under some circumstances, . . . a [d]efendant who had one prior felony conviction" would be subject to an enhanced punishment range. The trial court's statements were sufficiently general to elicit concerns from the venire about sentencing a defendant under an enhanced punishment range without informing it of appellant's prior conviction for burglary of a habitation. We hold that the trial court did not commit fundamental error when it addressed the venire. Accordingly, appellant's failure to object waives any error.
We overrule appellant's second point of error.Appellant's Failure to Testify
In his first point of error, appellant contends that the prosecutor made an improper jury argument by commenting on appellant's failure to testify at trial. Specifically, appellant argues that the following comments by the prosecutor were impermissible under the United States (3) and Texas (4) constitutions and article 38.08 of the Texas Code of Criminal Procedure (5):
Mr. Thompson didn't have any doubt that the man who's sitting there before you today is the person who committed this crime. Mr. Benjamin didn't have any doubt that the person sitting here in front of you today committed this crime. The testimony that you've heard here before has been uncontradicted. There has been nobody to come forward and say, this is not the man that committed this crime. You have not heard one word to the contrary.
(Emphasis added.) Appellant did not object to the prosecutor's argument. As a general matter, to preserve error for review on appeal, a defendant must object to an improper jury argument. Tex. R. App. P. 33.1; McFarland v. State, 989 S.W.2d 749, 751 (Tex. Crim. App. 1999); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). In Cockrell, the Court of Criminal Appeals held that "a defendant's failure to object . . . or . . . to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal." Cockrell, 933 S.W.2d at 89. The court went on to explain that, in order to argue that the prosecutor made an improper jury argument, an appellant must have "objected [at trial] and pursued [the] objection to an adverse ruling." Id. Appellant did not preserve this alleged error.
We overrule appellant's first point of error.Closing Argument
In his third point of error, appellant argues that the prosecutor made improper statements during his closing argument by referring to matters outside the record.
At the conclusion of the punishment stage of trial, the prosecutor stated the following:
There are people in our community who have been reduced to having guns in their homes when they otherwise wouldn't have anything to do with them. The sole purpose of having the weapon in their home is to protect themselves from people like [appellant].
Appellant's trial attorney objected to the prosecutor's argument, and the trial court overruled the objection.
To constitute a proper jury argument, an attorney's statements must generally fall within one of the following categories: (1) a summation of the evidence, (2) a reasonable deduction from the evidence, (3) answers to arguments by opposing counsel, and (4) a plea for law enforcement. Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the entire record. Id. To constitute reversible error, the argument must be extreme or manifestly improper, violate a mandatory statute, or inject into the trial proceedings new facts that are found to be harmful to the accused. Id.
The State relies on Wilson v. State, 943 S.W.2d 43, 47 (Tex. App.--Tyler 1996, pet. ref'd), for the proposition that the prosecutor's statement was a proper plea for law enforcement. In Wilson, a prosecutor stated during closing argument that, because of escalating crime, the legislature was considering legislation to allow citizens to carry concealed handguns. Id. Wilson objected to the statement as not being in evidence. Id. The Tyler Court of Appeals held that the statement was both a response to Wilson's argument and a proper plea for law enforcement. Id.
Appellant's case is analogous to Wilson. Here, the prosecutor's statements merely informed the jury that people have guns in their homes for protection from burglars. The evidence showed that appellant had prior convictions for credit card abuse, burglary of a building, burglary of a motor vehicle, and twice for burglary of a habitation. This evidence, plus the evidence that appellant confronted the complainant with a knife and threatened him during the commission of the burglary, constituted facts on which the prosecutor could permissibly base his plea for law enforcement. See Sandoval, 52 S.W.3d at 857. We hold that the prosecutor's statement was a proper plea for law enforcement.
We overrule appellant's third point of error.
Ineffective Assistance of Counsel
In his fourth point of error, appellant argues that his trial counsel was ineffective because he failed to object to inadmissible hearsay testimony. Specifically, appellant contends his trial counsel was ineffective because he did not object to Benjamin's statement that appellant was previously in prison.
To determine if a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). First, appellant must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Howland v. State, 966 S.W.2d 98, 104 (Tex. App.--Houston [1st Dist.] 1998), aff'd, 990 S.W.2d 274 (Tex. Crim. App. 1999). Second, appellant must establish that counsel's performance was so prejudicial that it deprived him of a fair trial. Id. Thus, appellant must show that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Howland, 966 S.W.2d at 104. Appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd).
We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Appellant must overcome the presumption that trial counsel's strategy was sound. Gamble, 916 S.W.2d at 93.
During cross-examination, the following exchange occurred between Benjamin and defense counsel:
Defense: All right. But my question is this: Do you remember - do you think you've ever seen [appellant] in your neighborhood?
Benjamin: No, not that I know of. The way I got it, he's been locked up all those years.
Defense: I'm sorry, I didn't understand the last thing you said.
Court: [Defense counsel], just leave it there.
Defense: Okay. Thank you.
Court: Why don't you approach the bench.
(Bench conference had.)
He said, no, because he's been locked up all those years. I'm not sure how many people heard that. But that's what he said. Do you want him to repeat it? I don't mean to run your case.
Defense: No. I didn't hear that. Thank you.
Court: All right. (Bench conference ends.)
Appellant's trial attorney asked a question which in itself did not invite the alleged hearsay statement. In answering, Benjamin offered the additional statement that appellant had been "locked up." The record shows that trial counsel did not hear or understand Benjamin's testimony. Appellant's attorney, when presented with the choice of having Benjamin restate his answer, declined to have him do so in order to prevent drawing attention to Benjamin's answer. See Garcia v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994) (holding that trial counsel's failure to request limiting instruction did not constitute ineffective assistance where counsel testified he did not want to draw more attention to the incriminating evidence). We conclude that, under these facts, the failure of appellant's attorney to object to Benjamin's statement did not constitute conduct that fell below an objective standard of reasonableness under prevailing professional norms. See Howland, 966 S.W.2d at 104. We overrule appellant's fourth point of error.
Conclusion
We affirm.
Evelyn V. Keyes
Justice
Panel consists of Justices Hedges, Keyes, and Evans. (6)
Do not publish. Tex. R. App. P. 47.
1. 2. 3. 4. 5. 6.