Mayberry v. State

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The heroin in question was contained in State’s Exhibits 3, 4 and 5. State’s Exhibit 3 was identified. An objection was made that the chain of evidence had not been established. The objection was sustained. The chain of evidence to the three exhibits was then established. When each of these exhibits was offered into evidence appellant’s counsel specifically stated on three separate occasions “no objection.” These exhibits were the only ones identified by Dr. Mason, the chemist, as being heroin. McGrew v. State, 523 S.W.2d 679 (Tex.Cr.App.1975), is directly in point. McGrew filed a motion to suppress evi*84dence; it was overruled the day before the trial. When the marihuana in that case was offered, his counsel stated, “Your Hon- or, we don’t have any objections.” This Court wrote:

“In view of the express statement of appellant’s counsel, nothing is presented for review under the claim that evidence was seized as a result of an illegal search. Cortez v. State, 520 S.W.2d 764 (Tex.Cr.App.1975); Johnson v. State, 504 S.W.2d 496 (Tex.Cr.App.1974); Weatherspoon v. State, 501 S.W.2d 909 (Tex.Cr.App.1973); Stewart v. State, 491 S.W.2d 410 (Tex.Cr.App.1973); Finklea v. State, 481 S.W.2d 889 (Tex.Cr.App.1972).”

The matter is not properly before us for review.

Appellant contends that the trial court erred in overruling his objection to the prosecutor’s argument “that appellant was guilty because a co-defendant was found guilty and sentenced to thirty years in the penitentiary.”

The record reflects that the following occurred during the prosecutor’s argument at the guilt stage of the trial:

“The facts that apply to this defendant are the same facts that applied to him [James E. Goodman], and he was convicted then, thirty years in the Texas Department of Corrections.
“MR. CHITWOOD [defense attorney]: Your Honor, I am going to object to this on the grounds that there is nothing in evidence to show what facts were testified to back there in February of 1972, and ask it to be withdrawn from the consideration of the jury.
“THE COURT: Jury will recall the evidence, Mr. Chitwood.”

In Verret v. State, 470 S.W.2d 883 (Tex.Cr.App.1971), this Court quoted from 56 Tex.Jur.2d, Trial, Section 317, page 673:

“An objection to argument must be pressed to the point of procuring a ruling or the objection is waived. And to protect the record where an objection is passed on provisionally, counsel must procure a final ruling before the conclusion of the trial.”

In Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App.1974), where the defendant objected to the prosecutor’s argument and the court responded, “The jury will have to remember the testimony,” this Court held that nothing was presented for review. It follows that nothing is before us for review in the instant case.

Appellant contends that the court erred in overruling his objection to an argument of the prosecutor which was outside the record.

The record reflects that the following occurred during the argument of the prosecutor at the guilt stage of the trial:

“MR. DAVIS [prosecutor]: I think common sense, and certainly a reasonable deduction from the evidence about how heroin is packaged, how it’s sold, what it sells for, tells you that it results in more crime in this community; that people do anything to get heroin, that his man—
“MR. CHITWOOD: Your Honor, I again object to this argument here. There is no evidence here whatsoever as to the effect of heroin on crime in Dallas County.
“MR. DAVIS: I will withdraw it.
“THE COURT: Overruled.
“MR. CHITWOOD: Note my exception.”

Appellant relies on White v. State, 492 S.W.2d 488 (Tex.Cr.App.1973), where in an appeal from a conviction for possession of heroin this Court held that the prosecutor’s argument which injected facts not in evidence, that sixty per cent of the crime in Dallas County was attributable to narcotics and that, when arrested, defendant was going “somewhere on up the line to get some more,” was of such a prejudicial nature as to deprive defendant of a fair trial.

When Officer Barnett entered the kitchen, appellant was observed “cutting up powder and mixing it with some white *85stuff, milk or something.” A portion of the substance was recovered and found to contain heroin. Eight small cellophane packets filled with a white substance were seized and found to contain heroin. These packets were described as “dime bags” or “hits” which are sold on the street for ten dollars a package. Empty cellophane wrappers and strips of cellophane tape were on the table where appellant was working and enough substance containing heroin was recovered, from the table to fill seven more “dime bágs” or “hit” packages. The argument that the heroin was for sale was a logical deduction from the evidence. Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973); Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973). The prosecutor did not argue as to what per cent of the crime in the county was caused by narcotics, as in White v. State, supra, but rather that it was “a reasonable deduction from the evidence” that the heroin “results in more crime in this community.” It being a reasonable deduction from the evidence that the “hit” packets or “dime bags” of heroin possessed by appellant were for sale on the street leads to the logical conclusion that the possession of same “results in more crime in the community.”

There is no evidence to support prosecutor’s argument “that people do anything to get heroin.” The question thus becomes whether such argument was so harmful as to require reversal. The evidence of appellant’s guilt was overwhelming. No evidence was offered to refute the three officers’ testimony that appellant was found in the possession of heroin. The only defensive theory raised by appellant was that the heroin was illegally seized. The punishment having been assessed by the court after the jury returned a verdict of guilty, it cannot be urged that such argument affected the penalty assessed. Whether argument of counsel requires reversal of a judgment of conviction must be resolved on the probable effect it has on the minds of jurors and the facts of each case must be looked to. Black v. State, 491 S.W.2d 428 (Tex.Cr.App.1973); Hodge v. State, 488 S.W.2d 779 (Tex.Cr.App.1972); Jett v. State, 489 S.W.2d 101 (Tex.Cr.App.1972). Under the facts and circumstances of this case, we do not find the error in the prosecutor’s argument to be so harmful as to require reversal.

The State’s motion for rehearing is granted. The reversal is set aside and the judgment of conviction is now affirmed.

ROBERTS, J., dissents for the reasons stated in his original opinion.