Opinion Issued December
15, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-01182-CR
KARLTON KEITH JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 963247
MEMORANDUM OPINION
Appellant Karlton Jackson was charged with murder, and convicted by a jury of the lesser-included offense of manslaughter. The jury assessed punishment at eight years in the Texas Department of Criminal Justice, Institutional Division. On appeal, with respect to the guilt-innocence phase of the trial, Jackson contends the trial court erred in admitting evidence of the victim’s character for peacefulness. With respect to the punishment phase of the trial, Jackson contends that the trial court erred in (1) admitting evidence of the details of a prior conviction alleged for enhancement; (2) failing to grant a mistrial after sustaining his objection that the victim’s criminal history was outside the record; (3) overruling his objection that the State’s argument that Jackson illegally carried a gun for ten years was outside the record; and (4) allowing the State to argue that the jury’s verdict could teach people not to take the law into their own hands. We affirm.
Facts
In September 2003, Jackson became romantically involved with Carol McTear, a resident of the apartment complex where he worked. One night while Jackson was staying with McTear, Alton Jones, McTear’s ex-boyfriend and the father of her child, banged on the door and window of the apartment in an attempt to visit with his son. Jones left when no one answered the door. Jones returned and knocked on the door the next morning, but left when no one responded to his knocking, and returned again a short while later. This time when no one answered the door, Jones drove his car to a nearby spot and waited. Shortly thereafter a gunshot was heard, and Jones’s car was seen speeding down the road, veering off the side of the road, jumping several retaining blocks, and landing in a culvert.
Jackson testified that, after he left McTear’s apartment to start his morning duties, Jones drove up to him and started cursing and making threats. Jackson told his boss that Jones scared him by following him in the car, so Jackson decided to scare him back by running up to Jones’s car wielding a gun. Jackson testified that Jones told him he and McTear were “going to get it,” so Jackson pulled out his gun to club Jones in the face with it. Jackson reached his hand into the car door toward Jones’s head and Jones accelerated the car, hitting the gun and causing it to go off. Jackson told a coworker he thought he killed Jones. Jackson was also seen sweeping up an empty cartridge casing in the area where the shooting occurred. The day after the shooting, Jackson’s brother took a gun Jackson had given him to the police. A firearms examiner established that the gun had fired the deadly shot.
Analysis
A. Admission of Evidence
In his first and fifth issues, Jackson contends the trial court erred in admitting (1) evidence of the victim’s character for peacefulness at the guilt-innocence phase of trial, and (2) evidence of the details of Jackson’s prior conviction alleged for enhancement purposes. We review a trial court’s decision to admit or exclude such evidence under an abuse-of-discretion standard and will not reverse a trial court’s ruling unless it falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); McRae v. State, 152 S.W.3d 739, 742 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). A trial court’s ruling will be upheld if reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
Victim’s Character for Peacefulness
In his first issue, Jackson contends the trial court erred in allowing the State to present, during its case-in-chief, evidence of the victim’s character for peacefulness. During direct examination by the State of McTear’s sister, Brenda Johnson, the following occurred:
STATE: Did you have an opportunity to observe [the victim’s] reputation for peacefulness?
JOHNSON: Right. Yes, I have.
DEFENSE: Judge, may we approach the bench?
COURT: Yes.
(At the Bench, on the record)
DEFENSE: Since when is the victim’s reputation admissible? I object to it.
COURT: You made an issue about—you made an issue about the guy’s character this morning.
DEFENSE: Those were not character, those were just facts.
So, the record is clear, I object to the character evidence, good character evidence about the victim being admitted in this trial.
COURT: Overruled.
(Open court, defendant and jury present)
STATE: Okay, Ms. Johnson, I just asked you if you were familiar with [the victim’s], your former brother-in-law, reputation in the community for peacefulness?
JOHNSON: He was a nonviolent man.
STATE: Okay.
JOHNSON: He wouldn’t hurt a fly.
Jackson contends the trial court abused its discretion in overruling his objection to admission of this testimony.
The State responds that Jackson opened the door to such evidence by attempting to establish the victim’s character for violence during cross-examination of an earlier witness. Prior to the State calling Johnson to testify that the victim had a peaceful character, Jackson cross-examined Sergeant John Swaim regarding statements made to him by Jackson’s girlfriend, McTear.
DEFENSE: And isn’t it true that Ms. McTear told you that [the victim] had been harassing her?
SWAIM: That’s correct.
. . . .
DEFENSE: And that on prior occasions he had come over there and would bang on the front door and windows and demanded entry into the apartment?
SWAIM: That’s correct.
DEFENSE: Did she tell you that that had occurred [the morning of the victim’s death]?
SWAIM: She said someone had came [sic] and banged on her window that morning, and she assumed it was the complainant but she didn’t get up to see who it was.
Swaim also testified that Jones knocked twice on the door, drove to another area, parked, and waited for about an hour and a half. Swaim testified that Jones chose not to leave, instead waiting for Jackson to leave the apartment in order to confront him.
In homicide cases, the State may present evidence of the peaceful character of the victim to rebut evidence that the victim was the first aggressor. Tex. R. Evid. 404(a)(2). The State may not offer such evidence, however, until the defendant has opened the door by himself presenting or eliciting evidence that the victim had a violent character. Arthur v. State, 339 S.W.2d 538, 539 (1960); see also Mack v. State, 928 S.W.2d 219, 225 (Tex. App.—Austin 1996, pet. ref’d) (stating Rule 404 “clearly provides that evidence of the victim’s peaceful character may only be offered in rebuttal to defense evidence that the victim was the first aggressor”).
Here, by eliciting testimony from Swaim that the victim was banging on the window harassing Jackson’s girlfriend, both on the morning of his death and on prior occasions, Jackson opened the door to testimony regarding the victim’s character for peacefulness. See Higgins v. State, 924 S.W.2d 739, 745 (Tex. App.—Texarkana 1996, pet. ref’d) (holding, in prosecution for murdering his wife, defendant opened door to testimony concerning wife’s peaceful character by eliciting testimony that wife had acted violently on other occasions, including testimony that she previously “got into it” with her brother, that she was ‘fighting back’ during fight with defendant on day of murder, and that she was not meek, but was full of energy). The trial court was within the zone of reasonable disagreement in determining that Johnson’s testimony was a proper rebuttal to Jackson’s cross-examination of Swaim concerning the victim’s violent character. The trial court did not abuse its discretion; thus, we overrule Jackson’s first issue.
Details of Prior Conviction Elicited at Punishment
In his fifth issue, Jackson contends the State improperly questioned him regarding the details of a prior conviction alleged for enhancement purposes. During the punishment phase of the trial, the State questioned Jackson as follows:
STATE: Mr. Jackson, you said that when you got picked up it was for one rock of crack cocaine; is that correct[?]
JACKSON: Yes.
STATE: Did you have a crack cocaine addiction at the time?
JACKSON: No.
STATE: Did you use crack cocaine?
JACKSON: No.
STATE: You just got picked up with crack cocaine?
JACKSON: Yes.
STATE: And have you ever used crack cocaine?
JACKSON: No.
STATE: Okay. So on your [penitentiary] packet when it says you tested positive for cocaine, that’s not correct?
DEFENSE: Judge, it does not say he tested positive.
JACKSON: No, they never tested me.
DEFENSE: Excuse me, Judge. The [penitentiary] packet does not say he ever tested positive for cocaine.
COURT: I’ll overrule the objection. I’ll give you a chance to redirect.
DEFENSE: The question assumes facts not in evidence. It says not avoiding injurious or vicious habits.
STATE: He failed to avoid use of narcotics or habit forming drugs.
DEFENSE: It does not say he tested positive for crack cocaine. I also object to her going into the details of the prior conviction.
COURT: Overruled.
On appeal, Jackson’s argument focuses on the discussion of the details of the prior conviction, not on whether Jackson ever tested positive for drugs.
After a defendant has been found guilty, evidence may be offered by the State and the defendant “as to any matter the court deems relevant to sentencing,” including evidence of other crimes or bad acts. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2005); Flores v. State, 125 S.W.3d 744, 746 (Tex. App.—Houston [1st Dist.] 2003, no pet.). A trial court has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial. Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). Though Jackson contends it is well settled that a prosecutor cannot introduce the details of a prior conviction for enhancement purposes, the Texas Court of Criminal Appeals held the exact opposite in Davis v. State, 968 S.W.2d 368 (Tex. Crim. App. 1998). In Davis, the court held that “Article 37.07 allows the details of any bad act to be considered during sentencing.” Id. at 373. Accordingly, the trial court did not abuse its discretion in allowing the State to question Jackson concerning the details of his prior conviction, and Jackson’s fifth issue is overruled.
B. State’s Closing Argument at Punishment
In his second, third, and fourth issues, Jackson contends the State made improper arguments during its closing in the punishment phase of trial. Specifically, Jackson contends the trial court erred in (1) failing to grant a mistrial after sustaining his objection that the State’s argument that the victim had never been arrested was outside the record, (2) overruling his objection that the State’s argument that Jackson illegally carried a gun for ten years was outside the record, and (3) allowing the State to argue that the jury’s verdict could teach people not to take the law into their own hands.
Proper jury argument is limited to (1) summation of the evidence presented at trial, (2) reasonable deductions from that evidence, (3) answers to opposing counsel’s argument, and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Swarb v. State, 125 S.W.3d 672, 685 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’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. Swarb, 125 S.W.3d at 685. “To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case.” Jackson, 17 S.W.3d at 673. We review the complained of argument accordingly.
Stating the Victim Had Never Been Arrested
During closing at the punishment phase, the State argued to the jury that the victim had never been known to carry a weapon, and had “never been arrested for anything.” Jackson objected that the statement was outside the record, and the trial court instructed the jury to disregard it. Jackson then moved for a mistrial, which the trial court denied. In most cases, an instruction to the jury to disregard improper jury argument cures any error. Shannon v. State, 942 S.W.2d 591, 597–98 (Tex. Crim. App. 1996). We may presume that the jury obeyed the trial court’s instructions to disregard, and reversal is appropriate only if the comment is so offensive or flagrant as to make the instruction ineffective. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000). Here, Jackson presented ample evidence that the victim was an unsavory character—addicted to drugs, suffering from AIDS, and constantly harassing Jackson’s girlfriend. This evidence coupled with the trial court’s instruction to the jury to disregard the State’s improper comment makes it unlikely that the comment affected the jury’s decision. The comment was not so offensive or flagrant as to make the instruction ineffective. See id. Accordingly, we conclude the trial court did not err in failing to grant a mistrial, and we overrule Jackson’s second issue.
Stating Jackson Illegally Carried a Gun for Ten Years
Also during the State’s closing at punishment, the following occurred:
STATE: Since 1994 [Jackson] has been carrying a weapon unlawfully. Goes and buys a weapon from a guy in Navasota, has this weapon for ten years, and uses this weapon, okay?
DEFENSE: Judge, we don’t want—the fact he has been carrying a weapon for ten years is outside the record. I object to it.
COURT: Overruled.
STATE: He said he bought it in 1994.
DEFENSE: It was legal for him to possess it in his house. I object to her saying he’s been violating the law for ten years.
COURT: Overruled.
On appeal, Jackson argues that it is outside the record whether he unlawfully carried a weapon for ten years, and that the trial court erred in overruling his objections.[1] Jackson testified that he purchased a weapon from someone in Navasota in 1995 and that he carried it with him when he was on-call at his job. He also admitted that he knew it was unlawful for him to have the weapon. The State’s argument that Jackson was unlawfully carrying the weapon ever since he bought it is a reasonable summary of, and deduction from, the evidence. Though the time period of ten years somewhat overstates how long he had been carrying the weapon, Jackson’s argument both at trial and on appeal focuses on the illegality of the possession, not the time period involved, and Jackson’s testimony that he carried the gun illegally places the State’s argument within the limits of a proper jury argument as a summation of the evidence presented at trial. See Jackson, 17 S.W.3d at 676. Accordingly, we conclude the trial court did not err in overruling Jackson’s objection, and we overrule his third issue.
Appeal to Jury to Teach People a Lesson
Jackson complains that the trial court erred in allowing the State to argue in closing at the punishment phase that “[y]our verdict can affect how other people perceive what happens when you unlawfully arm yourself and your verdict can teach people to not just take the law into their own hands and picking [sic] people off who they don’t get along with.” Jackson contends this statement was an attempt to convince the jury to assess punishment based on the expectations of the community, and thus falls outside the four permissible categories of jury argument. See Cortez v. State, 683 S.W.2d 419, 420 (Tex. Crim. App. 1984) (holding asking jury to assess punishment because community desires it is improper). Jackson did not object to the State’s comment concerning teaching people a lesson at trial. A defendant’s failure to object to allegedly improper jury argument waives any complaint on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Because Jackson has not preserved error, we overrule his fourth issue.
Conclusion
We hold (1) the trial court did not abuse its discretion in allowing evidence of the victim’s peaceful character because Jackson opened the door by questioning a State’s witness concerning the victim’s violent character; (2) the details of Jackson’s prior conviction were properly admitted at the punishment phase of the trial; (3) the trial court did not err in refusing to grant a mistrial after it instructed the jury to disregard a comment outside the record concerning the victim’s criminal record; (4) the trial court did not err in allowing the State to argue at punishment that Jackson illegally carried a weapon for ten years because the argument was a proper deduction from the evidence; and (5) Jackson waived his argument that the State made an improper appeal to community desires in closing because he failed to object at trial. We therefore affirm the judgment of the trial court. Any pending motions are denied as moot.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
[1] The Texas Penal Code provides that it is unlawful for a person convicted of a felony to possess a firearm within five years of the date of his release from confinement or supervision. Tex. Pen. Code Ann. § 46.04 (a) (Vernon Supp. 2005).