Opinion

Hill, Gregory v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Sep 26, 2002
Status
Published
Cited by
0 cases
Authority
More cited than 35.1%

The opinion

Opinion issued September 26, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-01158-CR

____________

GREGORY HILL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 866693

O P I N I O N

A jury found appellant, Gregory Hill , guilty of aggravated robbery. Appellant

pleaded true to the allegation in an enhancement paragraph that he had a prior felony

conviction for burglary of a habitation. After finding the enhancement allegation to

be true, the jury assessed punishment at 50 years in prison. In two points of error,

appellant argues that the trial court erred at the punishment phase of trial in denying

his motion for a mistrial and in overruling his objection to an improper jury argument

by the State. We affirm.

Factual Background

Harris County Sherrif's Deputy Russell Rocomontes, testified that, on the

evening of January 12, 2001, he responded to a robbery call at the house of the

complainant, Eric Brown. When Deputy Rocomontes arrived, Brown seemed upset,

dazed, and traumatized. Brown told Deputy Rocomontes that he had been robbed in

his driveway.

Eric Brown testified that he previously met appellant through a friend two

weeks before the robbery, and he identified appellant in court as one of two men who

robbed him at gunpoint. On the night of the robbery, Brown borrowed his father's

car and drove to a convenience store where he saw appellant and two other men in a

beige sedan. Brown and one of the men, identified as "Willie," then went to the

parking lot of a pool hall to smoke marihuana. At about midnight, Brown saw

appellant drive by in the same beige sedan.

Brown further testified that, when he later went home, he saw the beige sedan

parked in a driveway across the street and two houses down from his house. When

Brown parked his car, appellant pulled up in the beige sedan and blocked Brown's

driveway. Appellant asked Brown to sell him "three for ten," (1) and another man

jumped out of appellant's car. Brown agreed to sell appellant the marihuana and

retrieved the marihuana from his father's car. When Brown turned around, appellant

was holding a gun to Brown's face, told Brown he was being robbed, and demanded

all of Brown's money and narcotics. Appellant forced Brown to lie on the ground,

put his knee across Brown's face, and placed the gun on Brown's neck. When Brown

told appellant he did not have any more narcotics, appellant and his accomplice took

the marihuana and $200 from Brown and left.

Jury Argument

In his first point of error, appellant contends the trial court erred in denying his

motion for a mistrial after the State, in its closing punishment argument, mentioned

the possible punishment appellant could have received in connection with a prior

conviction.

The State argued, in relevant part, as follows:

MR. FREYER: What if we went to Kinko's and made a resume for

him? What would it have on it? He breaks into somebody's house and

steals without their permission. He gets a second chance, probation.

We are all on probation, you know. Don't break the law, don't abuse

drugs, don't abuse alcohol, tell people where you are going, be

responsible. We are on probation every day. He got that chance back

in September of '98. Not nine months later, how does he thank you?

How does he thank this judicial system? He goes out and gets caught

driving a stolen car and running from the police, not nine months later.

MR. JUSTIN: I object, Your Honor. He's charged with unauthorized

use of a motor vehicle. There was no testimony it was a stolen car. It

was being operated without somebody's permission.

THE COURT: Sustained. Stay within the evidence that is before the

jury. Ladies and gentlemen of the jury, you will remember the evidence

that is before you.

MR. FREYER: Okay. He was driving somebody's car without their

permission. Not even nine months later, that's how he - that's how

grateful he is for this chance that he's been given. So he goes to the pen.

Three years. Two is the minimum; he gets three. He could have gotten

20.

MR. JUSTIN: Judge, again I object. Again, it's outside the record.

There is no record of that.

THE COURT: Sustained.

MR. JUSTIN: I ask the jury be instructed to disregard that comment.

THE COURT: Disregard the last statement of the prosecutor. Rely only

on the evidence that you have heard.

MR. JUSTIN Move for mistrial, Your Honor.

THE COURT: Denied.

(Emphasis added.)

The law provides for, and presumes, a fair trial free from improper argument

by the State. Long v. State , 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). There are

four permissible areas of jury argument: (1) summation of the evidence, (2)

reasonable deductions from the evidence, (3) answers to the argument of opposing

counsel, and (4) pleas for law enforcement. Wesbrook v. State , 29 S.W.3d 103, 115

(Tex. Crim. App. 2000); Cifuentes v. State , 983 S.W.2d 891, 895 (Tex.

App.--Houston [1st Dist.] 1999, pet. ref'd). Even when an argument exceeds the

permissible bounds of these approved areas, such 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 , 29 S.W.3d at 115 . In most cases, an instruction

to disregard the remarks will cure the error. Id .

Here, the State argues the prosecutor's argument constituted a plea for law

enforcement. We agree that although the prosecutor's argument, as a whole, was a

plea for law enforcement - urging the jury to impose a lengthy sentence in this case

given appellant's prior sentences - the prosecutor's specific comment that appellant

"could have gotten 20" years was outside the record and outside the bounds of the

enumerated areas of proper argument. Therefore, the trial court correctly sustained

appellant's objection and instructed the jury to disregard the comment.

Generally, the appropriate remedy for improper argument is an instruction to

disregard. McGinn v. State , 961 S.W.2d 161, 165 (Tex. Crim. App. 1998) . We must

presume the instruction to disregard was followed by the jury. Wesbrook , 29 S.W.3d

at 116 ; see Colburn v. State , 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). A

mistrial should be granted only when an objectionable event is so emotionally

inflammatory that a curative instruction is not likely to prevent the jury from being

unfairly prejudiced against the defendant. Wesbrook , 29 S.W.3d at 116 ; Bauder v.

State , 921 S.W.2d 696, 698 (Tex. Crim. App. 1996).

Based on the record as a whole, we hold that the prosecutor's comment,

although improper, was not so inflammatory as to render the trial court's instruction

to disregard ineffective. Accordingly, the trial court did not commit error in denying

appellant's motion for mistrial.

We overrule appellant's first point of error.

Prior Conviction

In his second point of error, appellant contends that the trial court erred in

overruling his objection to the State's comment during its closing punishment

argument that the parole board did nothing when appellant "picked up a marihuana

case."

The State argued, in relevant part, as follows:

MR. FREYER: And you know for a fact by looking at these jud gments

and nothing else, he was sentenced to TDC in late June, I believe June

27th of 1999. And back in December of 2000, he gets caught and

convicted of smoking mari[h]uana - possession of mari[h]uana, excuse

me. So you know for a fact, it's right here, that he did less than 18

months on a three-year sentence. Didn't do half of it. So now he's on

parole. What does he do while he's on parole? Picks up the

mari[h]uana case, nothing happens to him, parole board didn't do

anything.

MR. JUSTIN: Excuse me, Judge. That's also outside the record that the

parole board hadn't done anything. That's outside the record. There is

no evidence to that, no testimony.

THE COURT: Ladies and gentlemen, you remember the evidence, you

rely on the evidence. What the lawyers say is not evidence and is

merely supposed to be a summary of the evidence.

MR. JUSTIN: My ruling, Judge?

THE COURT: That's overruled.

(Emphasis added.)

At the punishment phase of trial, appellant stipulated to several prior

convictions reflected on judgments and sentences offered and admitted into evidence.

The record established that appellant was convicted for burglary of a motor vehicle

in 1998 and was placed on five years community supervision. In June 1999,

appellant's community supervision was revoked after he committed the offense of

unauthorized use of a motor vehicle, and he was sentenced to three years

confinement. Appellant's mother testified that appellant was subsequently released

on parole at some point prior to December 2000. At that time, appellant was

convicted of possession of marihuana and sentenced to 30 days in jail.

Approximately one month later, appellant robbed Brown, who testified he had met

appellant about two weeks before the robbery.

The prosecution is afforded a wide degree of latitude in drawing reasonable

deductions from the evidence, so long as the inferences drawn are reasonable, fair,

legitimate, and offered in good faith. Shannon v. State , 942 S.W.2d 591, 597 (Tex.

Crim. App. 1996); Gaddis v. State , 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

Here, the evidence indicated that appellant, while on parole, was convicted of

possession of marihuana approximately one month prior to the robbery. We conclude

the State's argument was a reasonable deduction from the evidence presented, and we

hold that the trial court did not err in overruling appellant's objection to the argument.

We overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.

1.

Slang for three marihuana cigars for $10.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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