IN THE
TENTH COURT OF APPEALS
No. 10-95-212-CR
JASON COLEMAN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 95-76-C
O P I N I O N
Jason Lawrence Coleman was charged by indictment with the felony offense of capital murder. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 1994). He pled not guilty to the indictment, and a jury found him guilty of the lesser-included offense of aggravated robbery. Id. § 29.03. The jury assessed punishment at thirty-four years in prison and a fine of $450.00. Coleman appeals on three points. He complains in point one that the court erred by overruling his objection to the State's improper jury argument. He complains in points two and three that the court erred by instructing the jury on the lesser-included offense of aggravated robbery because there was no evidence to support it. We will affirm the judgment.
IMPROPER JURY ARGUMENT
In point one, Coleman alleges that the State's argument during the punishment phase was "calculated to make the members of the jury feel pressure to live up to the expectations of the community." The prosecutor began his final argument by referring to the fact that Coleman had been charged with capital murder and the jury found him guilty of only aggravated robbery. He explained that it was his duty to convince the jury of the greater charge and told them, "I didn't do my job." He further stated, "[I]f you give him ten years probation or some s[h]ort sentence, I submit to you that you might just as well have found him not guilty . . . . You are not going to send any message to the community that this kind of conduct is intolerable." The prosecutor closed his argument by stating, "I feel like I failed the State the first part of this trial. I hope you don't fail the citizens of this community by giving him a short sentence." Coleman objected to the argument on the ground that "it invites the jury to feel pressure from the community," and the court overruled his objection.
Proper jury argument falls within one of the following four categories: (1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to the opponent's argument; or (4) a plea for law enforcement. Coleman v. State, 881 S.W.2d 344, 358 (Tex. Crim. App. 1994), cert. denied, --- U.S. ---, 115 S. Ct. 763, 130 L.Ed.2d, 660 (1995); Harris v. State, 827 S.W.2d 949, 963 (Tex. Crim. App.), cert. denied, --- U.S. ---, 113 S. Ct. 381, 121 L. Ed. 2d 292 (1992). The State may argue the impact of the jury's verdict on the community as a form of a plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990). The State may not, however, argue that the community expects or demands a particular punishment. Id. at 56 (citing Cortez v. State, 683 S.W.2d 419, 420 (Tex. Crim. App. 1984)).
The Court of Criminal Appeals has disapproved arguments such as: "The people of Nueces County expect you to put this man away." Pennington v. State, 171 Tex. Crim. R. 130, 345 S.W.2d 527, 528 (1961); "[T]he only punishment that you can assess that would be any satisfaction at all to the people of [Nueces] county would be life." Cortez, 683 S.W.2d at 421; and "There are over a million people that stand between him and the penitentiary. They'd want him to go there if they knew what he did." Prado v. State, 626 S.W.2d 775, 776 (Tex. Crim. App. 1982). These arguments have been disapproved because the effect of the language used was to ask the jury to convict or punish based upon community sentiment rather than evidence. Cortez, 683 S.W.2d at 421.
Coleman complains that, by explicitly telling the jury that they would fail the community if they returned a short sentence, the prosecutor was arguing that the community expected the jury to return a lengthy sentence. The prosecutor described to the jury how he felt that he "failed the State" because he was unable to convince them to return the verdict the State wanted or expected, i.e., capital murder. He then told the jury by analogy, "I hope you don't fail the citizens of this community by giving him a short sentence." Coleman asserts that, if returning a "short sentence" would "fail the citizens of th[e] community," it follows that the community wanted or expected the jury to return a lengthy sentence.
The State argues that, when read in context, the argument requested the jury to protect the community and to send them a message. The prosecutor began his argument by reminding the jury that "[w]e all live in a society that's permeated with crime." He reminded the jury that they cannot ignore some crimes simply because they occur in a certain part of town :
It is like with our bodies. We don't say, well, I have a cancer in my toe, so we'll ignore that. We treat cancer in the brain seriously, but cancer in the toe we don't, because that cancer in the toe can spread to the rest of the body and kill it, just like crime that occurs in one area of the city can eventually slop over and spread to other areas.
He then illustrated how jury verdicts could be interpreted by the community:
The defendant took an oath to tell you the truth. By your verdict you have branded him a liar because he told you, which under the evidence was an absolute lie, that he didn't know anything about this robbery. ["]Golly, I didn't know it was going down.["] Well, you knew that was a lie. You convicted him.
You know, Adrian Martin got up here and told you, yeah, I knew what was going down. And he is serving a sentence now for capital murder. And he is not out walking the street.
People know what goes on in these courtrooms. Word gets out. Do you want it out on the street, said Adrian Martin told the truth and owned up and pled guilty, look what he got. Jason Coleman came in and lied to a jury, and they sent him out on probation and gave him a short time. Think about that. Is that justice? I don't think it is. And I hope you don't either.
The State contends that when the prosecutor asked the jury not to "fail the citizens of this community by giving him a short sentence," he was simply imploring the jury: 1) not to fail to protect the community by giving Coleman a chance for early release; and 2) not to fail to send a message to the community that this type of crime will not be tolerated.
We believe that, when read in context, the prosecutor's argument did not ask the jury to lend its ear to the community, but instead, asked the jury to be the voice of the community. Id. Accordingly, we find that the court did not err by overruling Coleman's objection to the argument. We overrule point one.
LESSER-INCLUDED OFFENSE
In points two and three, Coleman complains that the court erred by instructing the jury on the lesser-included offense of aggravated robbery because there was insufficient evidence to support an instruction or conviction for aggravated robbery. Coleman did not request the instruction, nor did he object to it at trial. He now contends that had the court not given the jury the instruction, he would have been found "not guilty" of all charges.
In determining whether a jury must be instructed concerning a lesser-included offense, a two-step analysis must be applied. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.), cert. denied, --- U.S. ---, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1963). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. at 673. Second, there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is only guilty of the lesser offense. Id. (clarifying the test in Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981)).
Aggravated robbery has been established as a lesser-included offense of capital murder. Belton v. State, 900 S.W.2d 886, 900 (Tex. App.—El Paso 1995, pet. ref'd). Thus, only the second prong of the Rousseau test remains, i.e., whether any evidence exists in the record that would permit a rational jury to find that Coleman is guilty only of the lesser offense of aggravated robbery. See Bignall v. State 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). Anything more than a scintilla of evidence is sufficient to warrant a lesser charge. Id. If the evidence warrants, "[b]oth the prosecution and the defendant have the right to insist upon and obtain the submission of a lesser-included offense charge." Richardson v. State, 832 S.W.2d 168, 170 (Tex. App.—Waco 1992, pet. ref'd). Accord Locke v. State, 860 S.W.2d 494, 495 (Tex. App.—Waco 1993, pet. ref'd); Gottlich v. State, 822 S.W.2d 734, 739 (Tex. App.—Fort Worth 1992, pet. ref'd).
As noted, Coleman did not object to the court's charge on the grounds that the evidence did not support submitting the lesser-included offense of aggravated robbery. The Court of Criminal Appeals has made clear that "[b]y invoking the benefit of the lesser included offense charge at trial in not objecting to its submission to the jury, an accused will be estopped from then complaining on appeal that the evidence failed to establish all the elements of the offense." Bradley v. State, 688 S.W.2d 847, 853 (Tex. Crim. App. 1985). Accord State v. Lee, 818 S.W.2d 778, 781 (Tex. Crim. App. 1991); Richardson, 832 S.W.2d at 171; Mello v. State, 806 S.W.2d 875, 877 (Tex. App.—Eastland 1991, pet. ref'd). Further, failure to object to the charge on the grounds that the evidence does not support submitting a lesser-included offense indicates acquiescence on the part of the accused that the lesser offense was raised by the evidence. Bradley, 688 S.W.2d at 853; Richardson, 832 S.W.2d at 171.
For these reasons, we hold that Coleman is estopped from complaining of the lesser-included charge on aggravated robbery. We overrule points two and three.
CONCLUSION
Having concluded that the court did not err in overruling Coleman's objection to the prosecutor's closing argument and that Coleman is estopped from asserting that the court erred in charging on the lesser-included offense of aggravated robbery, we affirm the judgment.
BILL VANCE
Justice
Before Justice Cummings and
Justice Vance
Affirmed
Opinion delivered and filed February 21, 1996
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