Hernandez, Reyes Anival v. State ( 2000 )

NUMBER 13-99-244-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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REYES ANIVAL HERNANDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 178th District Court of Harris County, Texas.

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O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

A jury found appellant, Reyes Anival Hernandez, guilty of the offense of murder⁽¹⁾ and assessed his punishment at twenty-five years imprisonment and a $10,000 fine. By four points of error, appellant contends the trial court erred in: (1) overruling his objection to the court's improper attempt to commit prospective jurors to a specific set of facts, (2) overruling his objection to the State's improper attempt to commit prospective jurors to a specific set of facts, (3) denying his challenge for cause to veniremember number seven, and (4) denying his motion for mistrial based upon the prosecutor's improper jury argument. We affirm.

A. Background

In October 1997, appellant met Deborah Baxter at a club in Pasadena, Texas, where Baxter worked as a topless dancer. Appellant and Baxter began to date and appellant bought Baxter various material goods, e.g., a car, clothes, and a cellular telephone. Baxter broke off the relationship when appellant began following her, harassing her, and watching her apartment at all hours of the night. Appellant then requested that Baxter return the items he had given her.

On December 6, 1997, appellant went to the "She's Not Here," a bar Baxter frequented. Baxter was not there, but appellant proceeded to get in an argument with Baxter's friend, Michael Dean Ramirez. The bartender asked appellant to leave, and he did. Baxter arrived at the bar later that evening with the bar's owner, Leticia Rocha. Baxter, Rocha, and Ramirez remained at the bar after it closed. At approximately 3:00 a.m., appellant returned to the bar with a gun, demanding that Baxter return his car and cellular phone. Ramirez had the keys to the car, and as he reached into his pocket to retrieve them, appellant shot him. The bullet entered at Ramirez's neck and exited through his back, lacerating his left lung. The wound caused Ramirez to bleed to death. Appellant also shot at Rocha, but missed her. Rocha then called 911. Appellant unloaded the bullets from his gun, and surrendered to the police when they arrived.

B. Voir Dire 1. Trial Court's Hypothetical

In his first point of error, appellant contends the trial court erred in overruling his objection to the court's voir dire hypothetical because it was an improper attempt to commit prospective jurors to a specific set of facts. Specifically, appellant asserts the court attempted to qualify the venire panel with an improper hypothetical situation regarding a person's eligibility for probation if the person was convicted of murder.

During voir dire the trial court discussed the range of punishment for the offense of murder. The record reflects the following occurred:

The Court: Additionally since 1974 our law has provided that where it is shown that an individual has no prior felony convictions a jury may recommend probation. Probation means that the defendant is not sent to prison, he is placed on rules and conditions of probation.

* * * * *

So the minimum punishment in Texas for an individual found guilty of murder who has no prior felony convictions is five years probation, up to ten years probation, or five years in prison, up to the maximum punishment of ninety-nine years in prison or life in prison and a ten thousand dollar fine.

We have this wide range of punishment in Texas for all first degree felonies because the legislature since 1974 has clearly recognized that every individual who's found guilty of the offense of murder is different. The facts of their cases are different and their backgrounds are different.

* * * * *

What I want to know now is this. Is there anybody on this jury panel who feels as though you would not be able to consider the entire range of punishment for an individual found guilty of the offense of murder who has no prior felony convictions from the minimum of five years probation all the way up to the maximum of ninety-nine years in prison or life in prison and a ten thousand dollar fine? I'm going to break my question down to two parts. The first part is this. Is there anybody who feels as though you would never ever under any circumstances no matter what the facts of the case are, no matter what the background of the defendant is, you would never ever consider under any circumstances assessing the minimum punishment of five years probation for the person found guilty of the offense of murder?

* * * * *

Anybody else have any questions? Yes, ma'am.

Venireperson: Could you define murder, first degree?

The Court: Intentionally and knowingly cause the death of an individual, all right? There's a second way in Texas that a person commits murder if you intend to cause serious bodily injury to an individual and you commit an act clearly dangerous to human life that caused the death of an individual. Wait. That's also murder in Texas, all right? And, and that's why this indictment has got two paragraphs. It alleges both of the ways that, that, that murder may be committed in Texas.

Venireperson: Then I like to add my name or my number to the list of the minimum.

The Court: All right. Yes, ma'am.

Venireperson: I like to add my number to the minimum.

The Court: Before you add your number to it hear me out. These lawyers and I realize that the minute I say murder and start talking about the range of punishment, start talking about probation, that people tend to think of the worse case scenario of where a person commits murder.

I was channel surfing during the Super Bowl. I saw a show where Richard Speck killed seven nurses in Chicago thirty years ago. Watched ten minutes of that, this horrible crime, and that's what people tend to think about when I say the word murder. There are many, many other instances, though, where a person can also be guilty of murder, and the, the, the case that I like to, to talk about is the real life case about ten years ago or so in Louisiana where a young girl was kidnapped, raped and murdered. They caught the guy who did it out in Nevada, uhm, several days later. He gave a full confession. Some police officers from Louisiana flew out to Nevada to get this guy, they flew him back to, to the New Orleans Airport, and when they walked this guy off of the plane all handcuffed, the father of that girl walked up to him and shot him five times and killed him. Now that's murder in Louisiana and it's murder in Texas. He intentionally and knowingly caused the death of an individual. But I would submit to you that when you consider the totality of the facts of that case and the background of that individual, assuming he had no prior criminal record, I'm assuming had a good job, well respected, that might be a situation where you not only consider five years probation, but grant or recommend five years probation.

* * * * *

What do you think about that?

Venireperson: I still have a hard time with murder, knowing, intent.

The Court: Right. He intentionally, knowingly caused the death of that individual, but when you consider the totality of the circumstances his seven year old daughter kidnapped, raped, daughter [sic] by this guy.

Venireperson: He was already convicted?

The Court: Nope, hadn't been convicted but he confessed, he laughed about it. He took the law into his own hands, in essence. Do you see my point?

* * * * *

The Court: You heard my scenario. Once again, no right or wrong answers to my question, but my question was that you would never ever, under any circumstances, be able to even consider assessing a minimum punishment of five years probation. You all raised your hand said could never ever. Now that you understand there are many situations where a person commits an offense of murder, uhm, have any of you all changed your minds about the answer to that question, . . . .

* * * * *

Venireperson: For murder, really, is murder.

The Court: Murder is murder. No doubt about it. The guy who killed and raped -- huh?

Venireperson: If you give him five years probation he [sic] be out on the street doing it again.

The Court: He rides down the elevator with you.

Venireperson: That's right. He would do it again.

The Court: No? Come on. This guy whose daughter got murdered by this rapist, you think he'd go out murder somebody again?

Venireperson: Well, he might not.

The Court: Right.

Venireperson: But most of the other people do.

The Court: I'm not talking most everybody. I'm talking about just the one individual out in Louisiana. You see my point?

Venireperson: Yeah, I see your point.

The Court: I mean, that guy in Louisiana he isn't going to get a speeding ticket. He isn't. He's going to ride the elevator. He is not going to get a speeding ticket. You might want to buy him dinner.

Defense Counsel: I just object. I must object to your hypothetical cause you are committing this jury to the concept of probation, that is, as to one set of facts rather than the general concept. I must object to it. I object further because your court -- this case is really euthanasia, now you're -- I believe that you're trying to argue with the jurors about what their opinions are, and I object.

The Court: Okay. Overruled.

Appellant asserts the trial court's Louisiana hypothetical attempted to commit the venire panel to a specific set of extreme facts in an attempt to qualify potential jurors. After a considerable amount of questioning by the trial court, appellant objected to the trial court's hypothetical and to its attempt to commit the jury panel to a particular set of facts. Appellant's objection was not timely. The objection must be made at the earliest possible opportunity or appellant fails to preserve error for appellate review. See Tex. R. App. P. 33.1; Wheatfall v. State, 882 S.W.2d 829, 833 (Tex. Crim. App. 1994). Appellant allowed the trial court to discuss the hypothetical at great length before he objected, thus, he did not preserve error for our review.

Assuming, arguendo, that appellant timely objected to the trial court's hypothetical, we conclude the trial court did not err in its presentation of the hypothetical. The court of criminal appeals has held that the use of a hypothetical fact situation during voir dire is permissible if it is used to explain the application of the law, but is improper if used to inquire how a venireman would respond to particular circumstances as presented in a hypothetical question. Cuevas v. State, 742 S.W.2d 331, 336 n. 6 (Tex. Crim. App. 1987). Hypothetical questions may not be used to commit the venire to a particular set of facts. Atkins v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997). Here, the context of the trial court's hypothetical illustrates that the judge was attempting to inform the prospective jurors that they had to be able to consider the entire range of punishment that could be levied. See Fuller v. State, 829 S.W.2d 191, 200 (Tex. Crim. App. 1992) (jurors must be willing to consider the full range of punishment applicable to the offense to avoid a challenge for cause). The judge was explaining to the jury panel that they needed to have an open mind and would have to consider the possibility of sentencing an individual to probation for committing the offense of murder. The trial court's hypothetical showed how probation could be applied depending upon the totality of the circumstances and facts of a given case, and that every case is different. Given that the facts described in the trial court's hypothetical are dissimilar to those actually involved in this case, and the fact that the trial court was presenting the hypothetical to explain to the prospective jurors that they must maintain an open mind and weigh all the facts of a case when considering punishment, we conclude the trial court did not abuse its discretion in overruling appellant's objection. See Anders v. State, 973 S.W.2d 682, 686 (Tex. App.--Tyler 1997, pet. ref'd) (noting that the dissimilarity between the facts in the hypothetical and those of the actual trial is a factor to consider); Henry v. State, 800 S.W.2d 612, 616 (Tex. App.--Houston [14th Dist.] 1990, no pet.) (hypotheticals that bear no resemblance to the crime committed are proper because they are simply designed to explain the application of a principle of law).

Appellant's first point of error is overruled.

2. The State's Hypothetical

In his second point of error, appellant contends the trial court erred in overruling his objection to the State's voir dire question about a battered wife because it was an attempt to commit prospective jurors to a specific set of facts.

The prosecutor presented the following to the prospective jurors:

Prosecutor: Now I want to talk -- I want to make sure y'all understand what the judge was talking about cause I know this is stuff you never think about. You never think, okay, what's the range of punishment for murder in Texas. . . .Now the judge told you the range of punishment is huge, okay? It's five years probation all the way to life. Why is it that way? Because we have a million different kinds of murders in Texas. A million different. I guarantee when you heard the word murder there were seventy-two different mental pictures of what that meant. Seventy-two different pictures. Probably ones you're thinking of are the high end, the life end of the scale, okay? Like the judge told you that one about the girl getting raped, father killing. Another one you would not believe in Texas is euthanasia. If you pull the plug on someone. That's murder in Texas, okay? That's what, what we're not asking you to do today, we're not asking you what would you give on a murder, okay, because y'all don't know the facts of this case. You have no idea what kinds of facts are involved, what kind of person the defendant is, the victim, where it happened, why it happen [sic]. You have no idea right now, so it wouldn't really be fair to ask you what you're going to get. What we're trying to find out is, is your mind closed to one end or the other, because when you say I never give probation on a murder you just haven't met the murder yet, because I'm telling you, uhm, battered wife, that's one where a lot of women give probation if been battered years, years, years, and finally said that's enough.

Defense Counsel: That can be a defense so I object.

The Court: I'll sustain the objection.

Appellant objected during voir dire that the prosecutor's discussion of a battered wife was a defense, and now on appeal he complains the battered wife hypothetical was used to commit the potential jurors to a specific set of facts. Because the objection below does not comport with that uttered on appeal, we conclude appellant has waived any error. See Tex. R. App. P. 33.1; Penry v. State, 903 S.W.2d 715, 763 (Tex. Crim. App. 1995). Appellant's second point of error is overruled.

3. Challenge for Cause

In his third point of error, appellant contends the trial court erred in denying his challenge for cause of veniremember number seven. Specifically, appellant contends the veniremember should have been dismissed because he said he could not consider probation as a possible punishment for the offense of murder.

A challenge for cause may be made by the defense or the State if the juror "has a bias or prejudice in favor or against the defendant." See Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (Vernon 1989). The purpose of allowing jurors to be challenged for cause is to guarantee fair and impartial jurors for both the State and the defendant. See Smith v. State, 907 S.W.2d 522, 529 (Tex. Crim. App. 1995). Prospective jurors should be excused for cause only if their views would prevent or substantially impair the performance of their duties as jurors. Wainwright v. Witt, 469 U.S. 412, 424 (1985); Moody v. State, 827 S.W.2d 875, 888 (Tex. Crim. App. 1992).

When the trial court errs by overruling a challenge for cause against a venireman, the defendant is harmed only if he uses a peremptory strike to remove the venireman and thereafter suffers a detriment from the loss of the strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App. 1986). Error is preserved only if appellant used all his peremptory strikes, asked for and was refused additional peremptory strikes, and was then forced to take an identified objectionable juror whom appellant would not otherwise have accepted had the trial court granted his challenge for cause or granted him additional peremptory strikes so that he might strike the juror. Garcia v. State, 887 S.W.2d 846, 852 (Tex. Crim. App. 1994); Adanandus v. State, 866 S.W.2d 210, 220 (Tex. Crim. App. 1993); Satterwhite v. State, 858 S.W.2d 412, 415 (Tex. Crim. App. 1993); see also Trevino v. State, 815 S.W.2d 592, 611 n.5 (Tex. Crim. App. 1991); Demouchette, 731 S.W.2d at 83.

The record reflects appellant used all of his peremptory strikes during jury selection. He asked for another strike, and the trial court denied the request. He then informed the court that he had been forced to use a peremptory strike on veniremember number seven, which he would have used on veniremember number forty-seven, who was objectionable and sat on the jury. We conclude appellant has preserved the error for our review.

When we review a trial court's ruling on a challenge for cause, we review the record as a whole to determine whether there is support for that ruling. Satterwhite, 858 S.W.2d at 415. Because the trial court is in the best position to view the demeanor of the veniremember and to determine his or her credibility, we give great deference to the trial court's ruling. Id. Absent an abuse of discretion, such a ruling will not be disturbed. Id.; Williams v. State, 773 S.W.2d 525, 536 (Tex. Crim. App. 1988).

Appellant contends veniremember number seven expressed his inability or unwillingness to consider probation for a person who intentionally and knowingly caused someone else's death unless the murder specifically involved euthanasia, a "mercy killing," or a "battered wife" killing. The following occurred during individual voir dire questioning of veniremember seven:

Defense Counsel: He said that he could not consider probation based upon your example and he could not consider five years as a minimum without consideration of probation.

The Court: Okay. Come on up. Uhm, [Defense Counsel], basis for his question was to make sure that the jury could consider the entire range of prison time for a person found guilty of murder. For example, there are some people who think that, you know, probation for first degree felonies, that's fine, but if a person is not going to receive probation, the minimum punishment they ought to receive is not five years, it ought to be ten years. Where they disagree with the minimum punishment is for all first degree felonies which includes murder. The legislature has established the minimum punishment all first degree felonies at five years in prison. Can you, can you consider that minimum punishment of prison time per person found guilty of a first degree felony? Did you understand my question?

Venireperson: Yes, I do understand your question. Uh, my way of thinking, if -- I would have to know what the individual did. I don't care if it was -- no, no, I'm just saying. I don't care if it's his first time.

The Court: Let me short circuit your answer. Here is why. The, uh -- we realize we're throwing these punishment ranges at y'all kind of out of the blue, uhm, so some people say after I hear or tell them what punishment, after I explain, they take the position that I don't care what the facts of the case are, I don't care what his background is, I can consider probation, but if I decide that he should not be granted probation I would never under any circumstances then consider the minimum of five years in prison. I would only consider a minimum of let's say ten years in prison.

Venireperson: I'm still following you.

The Court: That's my point. It's without consideration. You know the person is independently setting an arbitrary minimum punishment they could consider without consideration of the facts of the case.

Venireperson: No, no. That's not a problem. I can understand. And as far as consideration of the amount of time, my concern was that the question that or the statement that was made was then if the individual did this act deliberately intending to hurt someone, to me if an individual deliberately does this act and deliberately kills this person, then I don't care if it's his first time. I'm not concerned with probation. The five to ten years or ninety-nine years, that's not a major concern. I can figure out whatever I feel completely necessary but not the, the, the idea that if a person is convicted of doing this deed, they did it maliciously, they did it intentionally and they knew what the outcome could be if they did it. I don't care if its his first time to ever do anything like this again, the individual did it.

The Court: Right.

Venireperson: The individual has to pay.

The Court: He is guilty.

Venireperson: For his crime.

The Court: He is guilty. Okay.

Venireperson: Now as far as, you know, if, if the individual goes out and has intentionally just murdered the hell out of this person.

The Court: Right.

Venireperson: And I don't care what he did before, all I'm concerned with is if he did this he is guilty of this. This individual needs to be punished.

The Court: If you find that he did intentionally do this, commit the offense of murder, could you consider the entire range of punishment from the minimum of five years probation?

Venireperson: I could consider it but chances are I will not think of five years.

The Court: What now?

Venireperson: I said I can consider it, yes. I can consider anything from probation on up, depending on the circumstances, but ...

The Court: Wow, wow, wow.

Venireperson: Okay.

The Court: I am not asking you because I am not -- what I want to know is would you ever consider five years in prison under any circumstances across the board for all first degree felony murder cases? You would not ever consider under.

Venireperson: For all first degree felony murder cases would I consider --

Defense Counsel: Found someone intentionally cause the death of another person. Could you consider five years in prison?

Venireperson: Probably no. If they intentionally --

The Court: No, no, no.

Venireperson: That's what he just said.

The Court: Hold on a minute. I want to -- would you always, then -- so have you set a minimum in your mind that you were [sic]?

Venireperson: No, I have not.

The Court: Well, that's my point.

Venireperson: I could go way up past ninety-nine.

The Court: Well, we don't have a way past ninety-nine.

Venireperson: I understand.

The Court: We also don't have lower than five.

Venireperson: I would be hard pressed to say that I would ever say that for a crime of murder five years is sufficient. That's not to say that every individual case from here until the end of time.

The Court: Every individual does not deserve five years. Every individual does not deserve life in prison.

Venireperson: This is true.

The Court: Right. It's only those people where you feel that that punishment is appropriate.

Venireperson: That's right.

The Court: There are some jurors sitting out there who are of the opinion that no one ever deserves only five years in prison. If I rule out probation, everyone automatically deserves more than five years. Let's say ten years, everybody. They couldn't consider it under any circumstances. Do you see my point?

Venireperson: I see your point.

The Court: They're setting their arbitrary arrangement.

Venireperson: That's already decided what goes along.

The Court: Doesn't go with the law.

Venireperson: This is true.

The Court: That's what I'm trying to figure out.

Venireperson: I understand.

The Court: So you can?

Venireperson: I can consider from five years up to 99 to life.

The Court: And from five years probation up to ten years probation?

Venireperson: That totally depends on all the circumstances.

The Court: Right.

Venireperson: Your circumstance that you know this, but for the majority of, of the cases, you know, of murder cases.

The Court: Granted probation is not for everybody, life in prison is not for everybody.

Venireperson: I understand.

The Court: Can you promise you keep [sic] an open mind to the full range of punishment?

Venireperson: I think so.

The Court: I got to get you to make me more of a commitment. Here is why. If you're picked to be on a jury the very first thing that happens is you are asked to raise your right hand, take your oath as juror, an oath to render a true verdict according to the law and evidence so help you God. The answer to that oath is either I will or I will not. It's not like I think so.

Venireperson: No, I know. I can do that.

The Court: From the standpoint what that oath means that's a promise to each side that two things. You know what the law requires you to do and you will do it.

Venireperson: That's right. I will.

The Court: Can you do that?

Venireperson: I will do that.

The Court: Can you make them that promise?

Venireperson: Yes, I can.

The Court: That's all we need.

Venireperson: But I cannot tell you if given the circumstances that I will consider five years as being a sufficient amount of time. Do you see what I'm saying? I can listen to your arguments and I can give you an honest verdict, my feeling.

The Court: Right.

Venireperson: That's not a problem. The problem would lie in where if an individual does something horrible, such as murder, and then someone says, well, because its his first time he should only have five years even though he took the life of this other person.

The Court: But that's what you get to do in your position as juror.

Venireperson: That's fine.

The Court: What you don't get to do under your oath as juror is say I'm setting my own punishment, I am not following what the law is.

Venireperson: Oh, no. No, no. I cannot do that. I won't do that.

The Court: Okay. You have some questions of him?

Defense Counsel: Yes, sir. I don't mean to argue. You have very strong feelings about probation is not something that should be allowed for murder cases.

Venireperson: It would depend if your parent were very ill and you decided I can't put up with it, they're begging you to help them relieve them and you do it, you pull the plug on them or you give them something that eliminates that problem. No, I would have no problem after hearing the evidence and understanding what you did and why you did it. I would not have a problem saying, okay, in this case even though it is murder, by law. I don't have a problem with saying this person was suffering so badly that they got to the point where they were begging you take their life, help you to relieve them of this. I don't have a problem saying five years probation, ten years probation.

Defense Counsel: Or the example the judge gave you.

Venireperson: Or the example of the judge. I have a daughter. I would do the same thing in a heart beat.

Defense Counsel: I understand that.

Venireperson: If I go to jail for it, that's fine.

Defense Counsel: Other than -- but what I'm gathering is except the examples like the prosecutor's, the battered woman.

Venireperson: That's right.

Defense Counsel: Except for the euthanasia the judge used, the other judge's example, you be hard pressed to consider probation. That you have strong feelings if you found someone of intentionally or knowingly cause someone's death that you don't think that probation is appropriate.

Venireperson: I don't feel probation is appropriate for someone deliberately causing someone else's death other than like what we were just discussing.

Defense Counsel: Also I get the impression that you also think that someone intentionally or knowingly caused someone's death that five years in prison would also not be appropriate.

Venireperson: It might not be.

Defense Counsel: Because?

Venireperson: I don't feel that an individual has to be looked at based on where they grew up or what's happened to them throughout their life. The individual makes a decision. Person chooses to do what they do and you had better be ready to stand in front of a judge for your decision, state whether it's right or wrong.

Prosecutor: He said repeatedly in five hundred different ways depends on the murder we're going to try in this courtroom on what he would do. He doesn't have to say he would do it. He can consider it, he said that repeatedly, whether it's likely or not doesn't matter.

The Court: I can come up with one situation. I came up with one situation where most people sat out there thought, you know, the guy who killed the guy who --

Venireperson: Uh, I remember that. You're right, I would have bought him dinner.

The Court: I could consider probation for him. One of these lawyers come up in the situation, the euthanasia child, you know, pulls the plug on parents intentionally, it's murder.

Venireperson: That's right, it is.

The Court: Can you understand your mind [sic] that there may be more? We don't have all day.

Venireperson: Right, there may be other things to go along that line.

The Court: Right.

Venireperson: I am not completely blinded to the fact that there are other things other than euthanasia.

The Court: Those two or, or other examples; battered wife.

Venireperson: I understand there are other things that there may be evidence to warrant the type of behavior.

The Court: So, once again, will you promise to keep an open mind at the full range of punishment?

Venireperson: Yes, I can do that.

The Court: Anything else?

Defense Counsel: Your initial reaction to the question was you could not consider probation. That's not something you thought about or feel or you feel strongly about?

Venireperson: It would depend, yes, if I find that an individual has deliberately shot an individual, they knew what they were going to do, they went out, they did it, they chose to do this, yeah, I would find a real, real difficulty, even want to think about probation. But as far as a punishment phase of five years to ninety-nine years to life, I can sit there and think about somebody what should be done.

In a criminal trial, both the defendant and the State have the right to select from jurors who believe in the full range of punishment. Rosales v. State, 4 S.W.3d 228, 233 (Tex. Crim. App. 1999); Johnson v. State, 982 S.W.2d 403, 405 (Tex. Crim. App. 1998). Prospective jurors must be able, in a sense, to conceive both of a situation in which the minimum penalty would be appropriate and of a situation in which the maximum punishment would be appropriate. Rosales, 4 S.W.3d at 233; Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998). Prospective jurors must be able to accept that, for the offense in question, the minimum legal punishment will be appropriate in some circumstances and the maximum legal punishment will be appropriate in some circumstances. Id. A venireperson's complete inability to consider the full range of punishment, including probation, in a case where the defendant has not been convicted of any prior felony, would render the venireperson unfit for jury service. See Maddux v. State, 862 S.W.2d 590, 600 n.2 (Tex. Crim. App. 1993). In assessing a venireperson's capacity to consider the full range of punishment, we will not focus on an isolated answer or passage of the venireperson's testimony, but on his voir dire testimony as a whole. See Allridge v. State, 850 S.W.2d 471, 482 (Tex. Crim. App. 1991).

The proper question to determine bias against the law is "whether, in the proper [murder] case, where the facts justify it, and the law allows it, the [prospective juror] can fully and fairly consider the entire range of punishment, including the minimum and maximum." See Sadler, 977 S.W.2d at 142. The question is not whether the prospective jurors are willing to consider the entire range of punishment for the offense as appellant committed it. Id. at 143. To the contrary, the law requires jurors to use the facts of the case to tailor the punishment to the crime as committed by the guilty defendant. Id. "A prospective juror is not challengeable for cause based on inability to consider the full range of punishment so long as he can consider the full range of punishment for the offense as defined by the law." Id. Thus, a prospective juror can not be challenged for cause because he will use the facts to determine punishment.

Appellant asserts veniremember number seven's statements that he could only consider probation in a situation involving a mercy killing or battered wife establishes that he was biased as a matter of law. Appellant relies on Sunday v. State, 745 S.W.2d 436 (Tex. App.--Beaumont 1988, pet. ref'd). In Sunday, a prospective juror said she could not consider probation in a murder case unless it was a mercy killing. Id. at 437. The Beaumont Court of Appeals found that the prospective juror was disqualified under article 35.16(c)(2) because she had a bias or prejudice against the law. See id. at 438-39. The court held that by restricting probation to one circumstance, the prospective juror "would create her own statutes concerning minimum punishment for the offense of murder." Id. The court said that "while every person is entitled to hold and express such beliefs, we believe a criminal defendant has the statutory right under article 35.16 to have a jury assess punishment after consideration of the full range of punishment for his offense as prescribed by the legislature." Id.

The present situation is unlike Sunday because the veniremember in this case did not limit his ability to give probation to situations involving mercy killings and battered wives. While these examples were discussed, he said, "I understand there are other things that there may be evidence to warrant the type of behavior" and he could keep an open mind to the full range of punishment. Although the Sunday court is correct in its assertion that a jury must be able to consider the full range of punishment for an offense, we respectfully disagree with the court's ultimate decision because it is contrary to the holding in Sadler. See Sadler, 977 S.W.2d at 142 ("Jurors must be able to consider the full range of punishment for the crime as defined by the law. 'They must be able, in a sense, to conceive both of a situation in which the minimum penalty would be appropriate and of a situation in which the maximum penalty would be appropriate.'"). The veniremember in Sunday conceived of a situation where the minimum penalty for murder would be appropriate, i.e. mercy killing.

After reviewing the record, we conclude veniremember number seven conceived of multiple situations in which probation would be appropriate, and he indicated he could consider the full range of punishment, including probation. Veniremember number seven's discussion with the court established his willingness to consider the facts of the case and tailor the punishment to the case. Accordingly, we hold the trial court did not abuse its discretion in denying appellant's motion to strike veniremember number seven for cause. Appellant's third point of error is overruled.

C. Improper Jury Argument

In his fourth point of error, appellant contends the trial court erred in denying his motion for mistrial based on the prosecutor's improper jury argument. Specifically, appellant asserts the prosecutor was arguing outside the record and "was misrepresenting to the jury that if they believed appellant's testimony that the gun went off accidentally, and they found appellant guilty of manslaughter instead of murder, 'by law' appellant would go free and not have to go to jail/prison." We disagree.

In the State's closing argument, the prosecutor stated:

Prosecutor: . . . So what's the only defense that a murderer can come up in that situation? I didn't mean to do it. Every murderer wants to be convicted of manslaughter. Every murderer wants to get a charge on manslaughter so maybe the jury --

Defense Counsel: Your Honor, I object. The court is the one giving the charge, not a person accused of a crime.

The Court: All right, let's move along.

Defense Counsel: My ruling, judge?

The Court: Overruled.

Prosecutor: Every murderer wants to get convicted of manslaughter because its a lower felony charge, all right? Obviously you don't have to believe what the defendant said because if you had to believe what the defendant said by law our jail would be empty.

Defense Counsel: Your Honor, I object. That's a misstatement of the law. There's no evidence of that. That's outside the record.

The Court: Sustained. Let's move along.

Defense Counsel: Ask the court to instruct the jury to disregard the last statement.

The Court: Please disregard the last statement by prosecutor.

Defense Counsel: Ask for a mistrial, Your Honor.

The Court: Denied.⁽²⁾

Prosecutor: You also don't have to give his testimony any more weight than any other witness that testified. You get to judge his testimony critically as any other witness, okay?

Proper jury argument must fall within one of four categories: (1) summary of the evidence; (2) reasonable deduction from the evidence; (3) in response to argument of opposing counsel; and (4) plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990); Madden v. State, 721 S.W.2d 859, 862 (Tex. Crim. App. 1986); Alejandro v. State, 493 S.W.2d 230 (Tex. Crim. App. 1973). A prosecutor may argue the impact of a verdict on the community. Borjan, 787 S.W.2d at 55; Caballero v. State, 919 S.W.2d 919, 924 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd). The State may not use her closing argument to admit evidence which is outside the record and prejudicial to the accused. Borjan, 787 S.W.2d at 57 (citations omitted). "Reference to facts that are neither in evidence, nor inferable from the evidence is improper." Id. (citations omitted).

"A prosecuting attorney is permitted in her argument to draw from the facts in evidence all inferences which are reasonable, fair and legitimate, but she may not use the jury argument to get before the jury, either directly or indirectly, evidence which is outside the record." Borjan, 787 S.W.2d at 57; Jordan v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983); see also Contreras v. State, 838 S.W.2d 594, 606 (Tex. App.--Corpus Christi 1992, pet. ref'd) (quoting from Barnard v. State, 730 S.W.2d 703, 718 (Tex. Crim. App. 1987), that "It is well settled that the prosecutor may argue his opinions concerning issues in a case so long as the opinions are based on the evidence in the record.").

It is well-settled that even if a prosecutor's jury argument is improper, an instruction by the trial judge to the jury to disregard the improper argument is usually sufficient to cure the error. Melton v. State, 713 S.W.2d 107, 114 (Tex. Crim. App. 1986); Logan v. State, 698 S.W.2d 680, 682 (Tex. Crim. App. 1985). Reversible error occurs only when a statement is so inflammatory that its prejudicial effect cannot reasonably be removed by such admonition. McKay v. State, 707 S.W.2d 23, 33 (Tex. Crim. App. 1985); Blansett v. State, 556 S.W.2d 322, 328 (Tex. Crim. App. 1977). In order to fall within this requirement, the argument must be extreme, manifestly improper, inject new and harmful facts into the case, or violate a mandatory statutory provision. Borjan, 787 S.W.2d at 56-57; Phillips v. State, 701 S.W.2d 875, 892 (Tex. Crim. App. 1985).

After reviewing the record, we conclude the State's appeal to the jury was not improper. The prosecutor's statement, "every murderer wants to be convicted of manslaughter," is based on defense counsel's assertion in his closing argument that appellant's firing of the weapon was an accident, that appellant did not have the specific intent to be found guilty of murder, and that the jury should resolve the issue by finding appellant guilty of the lesser included offense of manslaughter.

The prosecutor's statement that the jury did not have to believe the defendant is based on the simple fact that the jury is the sole judge of credibility of the witnesses and they could choose to believe or disbelieve the testimony of appellant. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (as fact finder, the jury is the exclusive judge of the credibility of the witnesses and the weight to be afforded their testimony); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981) (the jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony).

Finally, the prosecutor's statement "if you had to believe what the defendant said by law our jail would be empty" initially appears prejudicial. However, after closer analysis we conclude it is simply a further assertion that the jury is the judge of the credibility of appellant's testimony that the death of Michael Ramirez was an accident. While the prosecutor's statement is overly dramatic, it exemplifies the importance of the jury's role in judging the credibility of a defendant as a witness, because if the jury was required, by law, to believe a defendant's version of the facts, the criminal justice system would begin to break down, i.e. the jail would be empty. We conclude the prosecutor's argument is simply a response to defense counsel's closing argument and is not improper. Even assuming, arguendo, that the comment was improper, we conclude the trial court's instruction to the jury to disregard the comment cured any harm. Appellant's fourth point of error is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

31st day of August, 2000.

1. Tex. Pen. Code Ann. § 19.02 (Vernon 1994).

2. In this case, appellant took the correct steps in preserving his objection for the record: (1) he objected to the prosecutor's statement; (2) he requested an instruction to disregard; and (3) he moved for a mistrial. See Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim. App. 1982); Koller v. State, 518 S.W.2d 373, 375 (Tex. Crim. App. 1975).