In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00046-CR
______________________________
HUBERT LEON JEFFERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 276th Judicial District Court
Camp County, Texas
Trial Court No. CF-04-047
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION
Hubert Leon Jefferson appeals his conviction for delivery of cocaine in an amount greater than four grams but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.112(d) (Vernon 2003). The trial court sentenced Jefferson in accordance with the jury's assessment of eighty years' imprisonment and a $5,000.00 fine. On appeal, Jefferson contends the trial court erred by sustaining the State's objection to Jefferson's closing argument on punishment as being outside the scope of the evidence. We affirm.
At issue on appeal is the following portion of Jefferson's closing argument:
Now, the bad thing about jury sentencing in Texas, at least with regard to first degree felonies, and we talked about this, you know, at voir dire, is that there's such a wide range of punishment on first degree felonies. It's just the sky is the limit almost. You've got five down here and you've got life up here. So it's a very wide range of punishment. And, you know, there's a -- I guess the good thing about that is y'all good people get to decide based on the evidence and the circumstances that you've heard where we should fall within that huge range. No one tells you that it has to be here or here or here or here. Y'all get to decide that based on what you feel is fair and right under the circumstances.
And let me point out to you that we've got a lot of first degree felonies in Texas, and I want you to use common sense when you go back in that jury room. I don't want you to go back there -- it's not proper for you to go back there and rule based on some knee-jerk reaction or some emotional response. You are to analyze. You are to analyze the evidence that you've heard, analyze the situation, and decide what's right and what is fair. You know, murder is a first degree felony in Texas.
MR. BAILEY: Objection, Your Honor. That's outside the scope of the evidence. It's not a proper consideration for the jury.
THE COURT: It's sustained.
First, the State contends Jefferson failed to preserve any alleged error by neither objecting to the trial court's ruling or offering into the record what he would have argued had the trial court not limited his argument. In the context of oral argument, a party generally need not object to a trial court's action in sustaining an objection made by the opposing party in order to preserve error. In this case, to preserve error, Jefferson was not required to object to the trial court's sustaining of the State's objection to his argument. However, as articulated on appeal, his complaint is not that the trial court erred by merely sustaining the State's objection, but that, by so ruling, the court erred "in limiting the scope of Appellant's jury argument . . . ." Jefferson elaborates in his brief by explaining that "[c]ounsel was attempting to argue that the jury should consider the type of offenses involved, especially compared to other types of offenses, within the common knowledge of Texas jurors, which carry similar punishment ranges." As so articulated, the State is correct: Jefferson failed to preserve error by failing to offer into the record what he would have argued had the trial court not sustained the State's objection. See Dean v. State, 481 S.W.2d 903, 904 (Tex. Crim. App. 1972); Davis v. State, No. 2-02-497-CR, 2004 Tex. App. LEXIS 3815, at *19 & n.36 (Tex. App.—Fort Worth Apr. 29, 2004, no pet.) (mem. op.) (not designated for publication).
Jefferson further states in his brief that "[d]isproportionate sentencing violates the Texas Constitution and case law," citing Craner v. State, 778 S.W.2d 144 (Tex. App.—Texarkana 1989, no pet.). He again asserts that his trial strategy was "to recite other first degree offenses, which would be familiar to and within the common understanding of the average juror, in order to provide [the] jury with all relevant information on which it should base its decision."
We presume, then, that Jefferson's purpose in making the oral argument he now says he was precluded from making, was to dissuade the jury from assessing an unconstitutionally disproportionate sentence. However, this was not a matter for the jury's consideration. It was the jury's sworn duty to assess a punishment within the range prescribed by law that it considered appropriate to the facts and circumstances as shown by the admissible evidence in that particular case. It would then be the trial court's initial responsibility to decide, pursuant to a timely filed post-judgment motion, if the punishment assessed was unconstitutionally disproportionate, based on evidence comparing the sentence imposed against other defendants in that or other jurisdictions who committed a similar offense. Davis v. State, 125 S.W.3d 734, 736 (Tex. App.—Texarkana 2003, no pet.); Alberto v. State, 100 S.W.3d 528, 530 (Tex. App.—Texarkana 2003, no pet.); Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App.—Texarkana 2002, pet. ref'd).
Even if this had been a proper consideration for the jury, the only evidence presented to the jury of other crimes and punishments was that evidence which concerned Jefferson's two prior convictions for delivering cocaine and the thirty years' imprisonment he received in each case. There is no evidence in the record of other first degree felony crimes and what other punishments have been imposed.
This Court has consistently held that, for a claim of disproportionate sentencing to be cognizable, there must be some evidence in the record comparing the sentence imposed against other defendants in this or other jurisdictions who committed a similar offense. Davis, 125 S.W.3d at 736; Alberto, 100 S.W.3d at 530; Fluellen, 71 S.W.3d at 873. In the absence of such evidence, Jefferson's disproportionate sentencing argument fails.
The State was correct in its objection to Jefferson's oral argument; such argument was "outside the scope of the evidence," and it was "not a proper consideration for the jury." The trial court did not err in sustaining the objection. Accordingly, Jefferson's sole point of error is overruled.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: October 21, 2005
Date Decided: October 24, 2005
Do Not Publish