Guadalupe Guerrero Flores v. State

Opinion issued December 18, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-01079-CR

____________

GUADALUPE GUERRERO FLORES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 272nd District Court

Brazos County, Texas

Trial Court Cause No. 29,443-F-272

O P I N I O N

Appellant, Guadalupe Guerrero Flores, pleaded guilty to the third degree felony

offense of driving while intoxicated (DWI), and a jury assessed his punishment at six

years in prison. In two issues, appellant alleges that the trial court erred in the

punishment stage of trial (1) by admitting a prior aggravated assault conviction into

evidence and (2) by overruling appellant’s objection to what he contends was

improper closing argument. We affirm.

Factual Background

At approximately 11:30 p.m. on January 5, 2000, Bryan Police Officer Paul

Mahoney saw appellant drive through a red light. Officer Mahoney turned on his

emergency lights and followed appellant’s car, which was traveling at a rate of only

15 mph in a 40 mph zone. Officer Mahoney followed appellant’s car for almost one-half of a mile before the car pulled into a parking lot and hit a parked car. Officer

Mahoney retrieved appellant’s driver’s license and discovered that it was “suspended

for DWI education program.” Appellant was arrested, and an intoxilyzer test

indicated that he had a blood alcohol content of .247, which was more than three

times the legal limit.

Appellant’s criminal history was introduced into evidence during the

punishment phase of trial. Appellant had four prior DWI convictions, a deferred

adjudication for aggravated assault, and was on probation for another DWI conviction

when he was arrested for this offense in January 2000.

Extraneous Offense

In his first issue, appellant argues that the trial court erred in admitting

evidence of his 1991 judgment and sentence for aggravated assault.

A trial court has broad discretion in determining the admissibility of evidence

presented at the punishment phase of trial. Henderson v. State , 29 S.W.3d 616, 626

(Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The code of criminal procedure

permits trial courts to admit evidence deemed relevant to sentencing, including

evidence of other crimes or bad acts. See Tex. Code Crim. Proc. Ann . art. 37.07,

§ 3(a)(1) (Vernon Supp. 2003).

At the punishment hearing, relevant evidence is that

which assists the fact finder in determining the appropriate sentence given the

particular defendant in the circumstances presented. Rogers v. State , 991 S.W.2d

263, 265 (Tex. Crim. App. 1999). This language grants wide latitude in the

admission of evidence deemed relevant, including evidence arising after the offense.

Contreras v. State , 59 S.W.3d 362, 365 (Tex. App.—Houston [1st Dist.] 2001, no

pet.); Peters v. State , 31 S.W.3d 704, 720 (Tex. App.—Houston [1st Dist.] 2000, pet.

ref’d). Even relevant evidence, however, may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid . 403.

As used in rule 403, “unfair prejudice” means the undue tendency of the evidence to

suggest a decision on an improper basis. See Rogers , 991 S.W.2d at 266 . We will

not disturb a trial court’s determination regarding the admissibility of relevant

evidence unless an abuse of discretion has been shown. See Green v. State , 934

S.W.2d 92, 101-02 (Tex. Crim. App. 1996).

When the State attempted to introduce the order of deferred adjudication and

the stipulation of evidence from appellant’s aggravated assault offense, appellant

conceded that the exhibits were relevant, but he objected because “under Rule 403 the

probative value is substantially outweighed by the danger of unfair practice, [sic] and

that it is a crime of violence.” On appeal, appellant, relying on Theus v. State , 845

S.W.2d 874 (Tex. Crim. App. 1992), argues that Rule of Evidence 609 prevents the

admission of evidence of his aggravated assault.

The Texas Rules of Appellate Procedure require that, in order for an issue to

be preserved on appeal, there must be a timely objection which specifically stated the

legal basis for the objection. Tex. R. App. P. 33.1(a). It follows that an objection

stating one legal basis may not be used to support a different legal theory on appeal.

Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). Courts have

routinely held that, where a complaint on appeal does not comport with an objection

made at trial, the error is not preserved on the complaint. Broxton v. State, 909

S.W.2d 912, 918 (Tex. Crim. App. 1998) ; Goff v. State, 931 S.W.2d 537, 551 (Tex.

Crim. App. 1996); Dunn v. State, 819 S.W.2d 510, 524-25 (Tex. Crim. App. 1991)

(discussing the importance of specific objections required under Rule 52, predecessor

to Rule 33.1) .

Here, a ppellant presents a different basis for excluding the evidence on appeal

than was raised in the trial court. An objection raised on appeal will not be

considered if it varies from the objection made at trial. Coffey v. State, 796 S.W.2d

175, 179 (Tex. Crim. App. 1990). Therefore, we will not consider appellant’s rule

609 argument.

On appeal, appellant makes no attempt to establish that, under a rule 403

analysis, the trial court abused its discretion in allowing the introduction of the

aggravated assault in the punishment phase of trial because the probative value was

substantially outweighed by the prejudicial effect.

We overrule appellant’s first issue.

Improper Jury Argument

In his second issue, appellant contends that the trial court erred in overruling

appellant’s objection to the prosecutor’s closing argument.

During the prosecutor’s closing argument at the punishment phase, the

following exchange occurred:

State:Probation puts him right back out on the street. There is no

guarantee with SAFPF. It is discretionary. So he goes

home; back to that car that ought to have a guardian

interlock system, but doesn’t. Somebody could get hurt.

That’s not the appropriate result in this case.

I want you to reach a verdict. I want you to take as long or

as little time as you need. I may be preaching to the choir.

This may be a no-brainer. It appears to be a no-brainer to

me. Six DWI’s, you go to prison. And you go to prison

for as long as the law allows because that’s what it takes

for us to make sure that somebody isn’t hurt.

That may be a no-brainer to you, too. I don’t know. But I

expect it’s also pretty hard [sic] get to the point where you

have to do this. But as I said, the right things are often the

hardest things to do.

You hold in your hands the community’s welfare. You

can make this a safer place. You can help us enforce the

laws, because if a six-time DWI doesn’t go to prison in

Brazos County, the next time somebody comes to my

office as a five-time, I can’t send him to prison.

Appellant:Judge, I’m going to object to that as an improper plea for

law enforcement, and it’s outside the record.

State: It is a plea for law enforcement.

Appellant:Judge, I didn’t – it doesn’t demand a response. That’s my

objection.

Court: Well, I’m going to ask for a response. State’s response?

State:It is a plea for law enforcement. It is a reasonable plea for

law enforcement.

Court: Overruled.

Appellant:And my other objection, it is outside of the record as to

what he personally believes.

State:Judge, it’s a reasonable inference from the record; it’s a

reasonable plea for –

Court: Overruled. Let’s move on.

(Emphasis added.) Appellant contends that the prosecutor’s remarks as to how he,

personally, would handle future DWI offenses was improper.

Permissible jury argument falls within one of four categories: (1) summation

of the evidence; (2) reasonable deductions from the evidence; (3) pleas for law

enforcement; and (4) response to opposing counsel. Felder v. State , 848 S.W.2d 85,

94-95 (Tex. Crim. App. 1992). In Cerda v. State , 10 S.W.3d 748 (Tex.

App.—Corpus Christi 2000, no pet.), the court of appeals was faced with a similar

issue. In Cerda , the complained-of argument was, as follows:

State:And I’ll tell you this. The one thing I will do; and

I promise is, I’ll listen to you. You are my voice.

You’re my sounding board. You think drug dealers

ought to get probation, give it to her, and I’ll deal

accordingly. On the other hand, if you believe, as I

think this evidence shows, you should respond with

strong penitentiary time; and I will respond

accordingly.

Defense:Judge, I object. I believe that’s way outside the

record, improper argument, telling this jury that he’s

going to start offering whatever they decide to give

in this case. And that’s totally outside the record

and way improper argument and I would ask for a

mistrial.

Id . at 756. The trial court overruled the objection, and the court of appeals affirmed

the ruling and stated that “appellant contends the prosecutor threatened the jury with

the prospect that he would base all future punishment recommendations on their

verdict. Construing the argument in its entirety, however, it appears the prosecutor’s

argument was actually a plea for law enforcement, which is a proper topic for jury

argument.” Id . at 757. A proper plea for law enforcement may take many forms, one

of which is to argue the relationship between the jury’s verdict and the deterrence of

crime in general. Borjan v. State , 787 S.W.2d 53, 55 (Tex. Crim. App. 1990).

Here, we hold that the prosecutor’s argument amounts to a plea for law

enforcement and that the trial court did not err in overruling appellant’s objection.

We overrule appellant’s second issue.

Conclusion

We affirm the trial court’s judgment.

George C. Hanks, Jr.

Justice

Panel consists of Justices Alcala, Hanks, and Hedges.

Publish. Tex. R. App. P . 47.2(b).