Opinion
No. 14-04-00878-CR
Memorandum Opinion filed May 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 208th District Court, Harris County, Texas, Trial Court Cause No. 954,761. Affirmed.
Panel consists of Justices HUDSON, FROST, and SEYMORE.
MEMORANDUM OPINION
Appellant, Albert O'Bryant Twyman, appeals his conviction for possession of a controlled substance. In five issues, appellant contends that the trial court erred by failing to strike fifteen prospective jurors for cause, the State made improper jury arguments during the punishment and guilt/innocence phases of trial, and the trial court erred by denying appellant's pretrial motion to suppress. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
I. Background
On July 10, 2003, Richard Corrales, an undercover Houston Police Officer, arranged to purchase marijuana from Donald Babino ("Babino"). Babino said that he knew where he could get marijuana and accepted twenty dollars from Officer Corrales. Babino got in Officer Corrales's vehicle and directed him to a nearby apartment complex. Officer Corrales remained in the vehicle and watched while Babino climbed the stairs to an upper-level apartment. Babino, appellant, and Officer Corrales disagreed at trial as to which of the subsequent events occurred inside the apartment and which occurred outside the apartment within the view of Officer Corrales. Nonetheless, they all agreed that Babino gave appellant the twenty dollars, and appellant left to get marijuana. They also agreed that appellant returned with a plastic bag of marijuana and gave it to Babino, who got back in Officer Corrales's vehicle. Officer Corrales gave a "bust" signal while driving away from the apartment complex. Uniformed officers directed occupants of the vehicle to stop and arrested Babino. They then returned to the apartment complex to arrest appellant. When the police searched appellant was searched incident to the arrest, they found crack cocaine was found in his pocket. A jury found appellant guilty of possession of a controlled substance. Appellant pleaded "true" to two enhancement paragraphs, and the jury assessed punishment at forty-five years' imprisonment.II. Challenges for Cause
In appellant's first two issues, he contends that the trial court erred by refusing to strike fifteen prospective jurors for cause. During voir dire, appellant's trial counsel explained the presumption of innocence concept by introducing a "presumption of innocence scale." He described the scale as follows:Let's imagine the scale of zero to four where four is on the other end of the scale is, well, if he sitting there, he is guilty, okay. Below that, we have got the [number] 3. We have probably the infinite number of in between. I think the math teachers can correct me where he is a little bit guilty; or the [number] 2, that he is kind of medium; and on the [number] one, well, where there is smoke, there is fire. If they charged him with it, there has got to be something there. So I think he may be a little bit guilty. [sic]After this explanation, appellant's counsel asked what number each panel member would assign to appellant. Twenty-four of the sixty-five panel members indicated that they would assign a number other than zero. Several of these panel members were struck by agreement or for other reasons, leaving seventeen that the defense counsel challenged for cause. The trial court admonished the panel on the law regarding presumption of innocence and asked the panel members who had assigned a number other than zero to raise their hands if they still questioned their ability to presume appellant innocent. Two panel members told the court they could not presume appellant innocent and were struck for cause. The trial court denied appellant's request to strike the remaining fifteen panel members for cause. In general, we review the trial court's denial of a challenge for cause under an abuse of discretion standard. Rachal v. State, 917 S.W.2d 799, 810 (Tex.Crim.App. 1996). We must view the trial court's decision in light of voir dire as a whole to determine whether the trial court had a rational basis for its conclusion. Granados v. State, 85 S.W.3d 217, 231 (Tex.Crim.App. 2002). We defer to the trial court's decision to grant or deny a challenge for cause when the responses of a prospective juror are equivocal, unclear, or contradictory. Colburn v. State, 966 S.W.2d 511, 517-18 (Tex.Crim.App. 1998). In his first issue, however, appellant argues that the prospective jurors were biased or prejudiced against appellant as a matter of law. When a prospective juror is biased or prejudiced as a matter of law, he must be excused when challenged, even if he states he can set aside the bias and provide a fair trial. Smith v. State, 907 S.W.2d 522, 530 (Tex.Crim.App. 1995); Williams v. State, 565 S.W.2d 63, 65 (Tex.Crim.App. 1978). Courts have found bias or prejudice as a matter of law when a prospective juror (1) admits his bias for or against a defendant, (2) admits prejudice against persons who consume intoxicating beverages when the defendant is charged with an offense involving alcohol, (3) admits or demonstrates a racial or ethnic prejudice, (4) admits resentment towards a defendant based on prior contact, or (5) is related to the State's primary witness. Morales v. State, 875 S.W.2d 724, 725 (Tex.App.-Fort Worth 1994, no pet.); see Anderson v. State, 633 S.W.2d 851, 854 (Tex.Crim.App. 1982). None of these situations is present here. The panel members did not express or admit to holding a bias or prejudice against appellant; rather, they assigned numbers based on an erroneous and confusing explanation as to the law regarding the presumption of innocence. See Smith, 907 S.W.2d at 530 (distinguishing possible bias or prejudice against the applicable law from the type of bias or prejudice against a defendant's person which generally cannot be rehabilitated). Therefore, the panel members were not biased or prejudiced against appellant as a matter of law. Accordingly, we overrule appellant's first issue. In his second issue, appellant argues that the trial court abused its discretion by failing to grant his challenges for cause even if the jurors were not biased or prejudiced as a matter of law. If a panel member is unwilling to afford a defendant the presumption of innocence, he may be challenged for cause on the ground that he is biased or prejudiced against the applicable law. See Tex. Crim. Proc. Code Ann. art. 35.16(c)(2); Banda v. State, 890 S.W.2d 42, 55-57 (Tex.Crim.App. 1994). However, here, appellant's fictitious "presumption of innocence scale" was an incorrect characterization of the law. See Morrow v. State, 910 S.W.2d 471, 473 (Tex.Crim.App. 1995) (rejecting appellant's claim that the trial court erred by failing to grant a challenge for cause based on bias or prejudice against the applicable law when appellant's explanation of the law was incorrect). Moreover, even if the numbers are interpreted as indications the panel members had formed conclusions as to appellant's guilt, it was still within the trial court's discretion to qualify them upon a subsequent determination that they would be able to set aside their opinions and grant appellant the benefit of the presumption of innocence. See Smith, 907 S.W.2d at 530; see also McBride v. State, 7 S.W.2d 1091, 1092-93 (Tex.Crim.App. 1928) (describing the rationale for the "fundamental distinction" between holding a prejudice against a defendant and forming a conclusion as to the guilt or innocence of the defendant). After the trial court admonished the panel members on the law regarding the presumption of innocence, only two panel members indicated that they would not be able to grant appellant the benefit of the presumption of innocence. Those two panel members were struck for cause. It was within the trial court's discretion to deny the challenges for cause with respect to the remaining panel members, all of whom who all indicated that they would be able to follow the law. Accordingly, we overrule appellant's second issue.
III. Closing Improper Argument
In his third and forth issues, appellant contends that the prosecutor made improper closing argument during both the guilt/innocence and punishment phases of trial. The State's jury arguments must fall within one of the following categories: (1) summation of the evidence; (2) reasonable inferences from the evidence; (3) answers to opposing arguments; or (4) pleas for law enforcement. Rocha v. State, 16 S.W.3d 1, 21 (Tex.Crim.App. 2000). Reversible error results from improper argument only when the argument is extreme or manifestly improper, injects new facts into the case harmful to the accused, or violates a mandatory statutory provision. Borjan v. State, 787 S.W.2d 53, 56-57 (Tex.Crim.App. 1990). In reviewing challenges to a jury argument, we consider the State's arguments in the context in which they appear. Gladdis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988).A. Punishment Phase Argument
In his third issue, appellant argues that the State improperly urged the jury to return a punishment verdict based on evidence outside the record. During the punishment phase of trial, the State argued as follows:He told you on the stand while he was testifying in the guilt stage of the trial that he contributes to his family by not being able to keep a permanent job, by not taking care of his kids, paying child support every month; and he also contributes to his family by dealing crack cocaine out of the apartment complex that they live in, that they have to live in each and every day. That is his contributions to society and to his family.Appellant objected on the grounds that the State was misstating the evidence. The judge instructed the jury to remember the testimony they had heard, but overruled the objection. At trial, appellant testified that he had sold drugs in his past. He further testified that he did not have steady employment and, therefore, had not been paying he child support. He also admitted that he packaged the cocaine at issue in nineteen separate bags, with all but one bag containing one crack rock each. Appellant did not deny that he was selling the cocaine. Rather, he admitted that selling drugs was "easy money." Accordingly, we conclude that the State's argument consisted of a proper summation along with reasonable inferences drawn from the evidence presented at trial. Appellant's third issue is overruled.
B. Guilt/Innocence Phase Argument
In his fourth issue, appellant argues that the State improperly urged the jury to return a guilty verdict based on the demands and expectations of the community. During the guilt/innocence phase of trial, the State argued:So basically, if you believe [appellant's] story, you will have to believe him versus three police officers that have a collective amount of experience of like some — I don't know — fifty something years, fifty plus years together, who take it upon themselves to go day in and day out going to the street, trying to rid the streets of Harris County, Texas, of drugs. You know, this isn't a big kilo case. Instead of going out and making that big drug bust, that big deal, they are going out and doing one drug bust after another, getting one crack rock, getting one, getting the cocaine off of the street a little bit at a time. And they are doing that so the people of Harris County, Texas, can have a safer environment, people like you and you and you, everybody.It is well established that the State may not urge the jury to return a verdict based on the demands, desires or expectations of the community. Borjan, 787 S.W.2d at 56; Cortez v. State, 683 S.W.2d 419, 420-21 (Tex.Crim.App. 1984). However, the fact that the State refers to the community during closing argument does not, in and of itself, constitute an improper appeal to the community's expectations. See Caballero v. State, 919 S.W.2d 919, 924 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). Here, the State did not argue that the community expected the jury to return a guilty verdict; rather, the State argued that the police officers were protecting the members of the community including the jurors. The State's argument therefore amounted to a proper plea for law enforcement. Accordingly, we overrule appellant's fourth issue.