Opinion
NUMBER 13-19-00296-CR
07-23-2020
RONNIE WILLIAMS A/K/A RONNIE RAY WILLIAMS, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 361st District Court of Brazos County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Perkes, and Tijerina
Memorandum Opinion by Justice Hinojosa
A jury convicted appellant Ronnie Williams a/k/a Ronnie Ray Williams of possession of a Penalty Group 1 controlled substance (methamphetamine) over 4 grams but under 200 grams, a second-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d). After finding an enhancement to be true, the trial court sentenced Williams to twenty years' incarceration in the Texas Department of Criminal Justice—Institutional Division. By two issues, Williams argues the trial court erred by: (1) allowing the State to make an improper closing argument; and (2) admitting expert testimony related to gang affiliation during the punishment phase of the trial. We affirm.
I. BACKGROUND
This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001.
Williams had a jury trial for possession of methamphetamine. After the presentation of evidence, the State gave its closing statement. The State argued:
We're trying to do something about this [the sale of drugs] and the only way we can do something about it is to do something about the calls that come in like [Investigator Kneese] said from those neighbors that are saying, please help us get this out. Those people are doing the only thing that they have the power to do, the only thing that you as a neighbor in your own community, your own little neighborhood would have the power to do, and that's to call.
. . . .
And why is this important? Because he's the one putting the drugs on the street. It's his level that's getting them onto those streets. Each one of these is a person who has a family. Every single one, they have a family and these are going to them and that's when this matters. . . . He was dealing that day and we have an obligation to listen to the voices that call in and say, please help. Please get these people out of my—my neighborhood. We have to chisel away at it little by little because we can literally do all of that. They can call in. We can have the investigations. Officers can come testify, but it ends right here. You have the final say and so we're asking that you find him guilty, that you hold him accountable.
Williams, during his closing, rebutted the allegations made by the State that community members were calling about Williams. He argued:
Then when [the officer] reported it he just said Ronnie Williams was in the car, he has a warrant, I saw him up there. That's the basis of this stop. All
this stuff the State said about protecting this community over here and all these people crying and yelling and saying come—come get Ronnie Williams—no, it has nothing to do with this. I don't even know where that's coming from.
. . . .
Don't . . . go down this rabbit trail of everybody over this is calling, saying Ronnie Williams is a drug dealer. That's what they want to insinuate. There is no evidence of that.
After deliberation, the jury convicted Williams of possession of a Penalty Group 1 controlled substance (methamphetamine), over 4 grams but under 200 grams, a second-degree felony. See id. The trial court then proceeded with the punishment phase of the trial. The State called Andrea Schooler, a seventeen-year veteran officer with the Bryan Police Department, to testify. Schooler, the department's criminal intelligence "gang officer," testified that it was her opinion that Williams was a member of a gang.
Schooler explained that the Texas Legislature set forth ten factors to determine whether someone can be entered into a statewide gang database. Two of the factors, she explained, are "stand-alone" and determined by a judicial proceeding: (1) a judicial self-admission or (2) a judicial finding of gang membership. When someone meets either of these categories, they are automatically entered into the system. She testified that the other eight factors are: (1) gang paraphernalia, (2) a non-judicial self-admission, (3) being identified as a gang member by a reliable individual, (4) being identified as a gang member by an individual of unknown reliability, (5) frequenting a documented gang area and associating with known gang members, (6) being arrested or detained with gang members for conduct consistent with gang activity, (7) visiting a known gang member in a correctional facility, and (8) using the internet as a gang recruitment tool. According to Schooler, a person is entered into the gang database if they meet two of the latter eight factors.
Schooler testified that, in her opinion, Williams met four of the factors and was a member of the SOS/KOS (Smash on Site, Kash on Site) Bloods gang in Brazos County. Williams did not object when Schooler pronounced this opinion. On cross-examination, Williams focused on the fact that Schooler failed to recall the specifics of how she evaluated the criteria. After the close of testimony, the trial court found Williams's enhancement to be true and sentenced him to twenty years in the Texas Department of Criminal Justice—Institutional Division. Williams appeals.
II. IMPERMISSIBLE JURY ARGUMENT
By his first issue, Williams claims reversible error occurred when "the State's attorney made an assertion of a fact which induced the jury to convict based on new and harmful facts injected into evidence"—namely, that the community was calling the police department to rid their neighborhoods of people like Williams, who was accused of having drugs.
A. Standard of Review & Applicable Law
Permissible jury argument falls into one of four categories: "(1) summation of the evidence, (2) reasonable deduction from the evidence, (3) an answer to the argument of opposing counsel, and (4) plea for law enforcement." Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App. 2019) (citing Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011)). Should a prosecutor's arguments exceed the bounds of these areas, such action will not constitute reversible error "unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding." Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). We review a trial court's ruling on an objection of improper jury argument for an abuse of discretion. Milton, 572 S.W.3d at 241.
B. Analysis
Williams contends that the State's closing argument was improper and prejudicial because it "argued that the jury should listen to the community's desire for a particular result"—to rid its neighborhoods of drugs—and that such a request "induces the jury to convict based on new and harmful facts injected into evidence." See, e.g., Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990). In its closing argument, the State made the argument that "those neighbors that are saying, please help us get this out. Those people are doing the only thing that they have the power to do, the only thing that you as a neighbor in your own community, your own little neighborhood would have the power to do, and that's to call."
The Texas Court of Criminal Appeals, however, has held that "a defendant's failure to object to a jury argument or to pursue to an adverse ruling his objection to a jury argument forfeits the right to complain about the argument on appeal." Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)). Here, Williams did not object during the State's closing argument when it mentioned that members of the public were calling law enforcement to rid the community of drugs. And although Williams cites both Cortez v. State and Poole v. State to support this issue on appeal, those opinions are easily distinguishable because in those cases, the attorneys objected during the alleged improper argument during closing. See Cortez v. State, 683 S.W.2d 419 (Tex. Crim. App. 1984); Poole v. State, 974 S.W.2d 892 (Tex. App.—Austin 1998, pet. ref'd). Williams made no such objection here.
Williams objected once during the State's closing argument. The objection came after the statements at issue were already in the record, and it was specifically regarding "any evidence or comments of [a] narcotics tip."
Williams further complains that the trial court "did not issue any . . . instruction for the jury to disregard the statements made by the State's attorney." However, it was incumbent upon Williams to request that instruction—the trial court was not required to do so sua sponte. See Young v. State, 137 S.W.3d 65, 70-72 (Tex. Crim. App. 2004) ("[A] party who fails to request an instruction for the jury to disregard forfeits appellate review of errors that could have been cured by such an instruction"). Accordingly, we conclude that this issue has not been preserved for appeal. See TEX. R. APP. P. 33.1(a). We overrule Williams's first issue.
III. IMPROPER TESTIMONY
By his second issue, Williams argues that the trial court erred in allowing Schooler's "expert" testimony regarding Williams's alleged gang affiliation and/or membership and that this error requires reversal of Williams's punishment.
A. Standard of Review & Applicable Law
An appellate court reviewing a trial court's ruling on the admissibility of expert opinion testimony must utilize an abuse of discretion standard of review. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The appellate court must review the trial court's ruling in light of what was before the trial court at the time the ruling was made. Id. "An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection." Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004).
B. Analysis
Williams complains that the trial court should not have allowed Schooler to opine about Williams's alleged gang affiliation and/or membership. The record, however, shows that Williams failed to object during Schooler's testimony:
Q. [STATE] And has the State approached you in this case and asked you to make the determination in the State of Texas versus Ronnie Williams?
A. Yes, they have.
Q. So how many criteria does it take to meet gang membership?
A. You have to have at least two.
Q. How many criteria does this defendant, Ronnie Williams, meet?
A. He meets at least four.
Q. Do you have an opinion as to whether this defendant is a member of a gang?
A. Yes. My opinion is he's a member of the Bloods.
Q. Which—is there—is the Bloods general or specific—
A. A sect or a clique.
Q. A clique, there you go.
A. Yes.
Q. That's the word I'm looking for.
A. Yes. The specific clique that he's involved with is SOS/KOS, which stands for Smash on Site, Kash on Site.
Q. Pass the witness.
Texas Rule of Appellate Procedure 33.1(a)(1)(A) requires that to preserve error "the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion that . . . stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint . . . ." TEX. R. APP. P. 33(a)(1)(A). Although Williams, during cross-examination, attempted to discredit Schooler's opinion by pointing out that she could not recall the bases for her opinion, her testimony regarding Williams's alleged gang membership was already in evidence. See Lane, 151 S.W.3d at 193 (holding that error, if any, in the admission of evidence is waived if it is admitted without objection elsewhere in the record). Accordingly, we hold that this issue was not preserved for our review, either.
IV. CONCLUSION
We affirm the trial court's judgment.
LETICIA HINOJOSA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 23rd day of July, 2020.