Johnson, Leon Jerome v. State ( 2000 )

NUMBER 13-95-114-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

LEON JEROME JOHNSON,

Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 24th District Court of Jackson County, Texas __________________________________________________________________

OPINION ON REMAND

Before Chief Justice Seerden and Justices Hinojosa and Yañez

Opinion by Justice Yañez

This case is before us on remand from the Texas Court of Criminal Appeals. A jury found appellant, Leon Jerome Johnson, guilty of attempted capital murder and assessed punishment at ninety-nine years of confinement and a $10,000 fine. By four points of error, appellant challenged: (1) the trial court's denial of his motion for a jury shuffle (point one); (2) the legal sufficiency of the evidence supporting his conviction (point two); (3) the trial court's denial of his request for a mistrial based on the prosecutor's display of a gun in the presence of the jury (point three); and (4) the trial court's denial of his request for a mistrial based on improper jury argument (point four). On original submission, this Court held that the trial court erred in denying appellant's request for a jury shuffle, reversed the judgment, and remanded for a new trial.⁽¹⁾ See Johnson v. State, 944 S.W.2d 739, 743 (Tex. App.--Corpus Christi 1997), rev'd per curiam, 977 S.W.2d 137, 140 (Tex. Crim. App. 1998). Upon the State's petition for discretionary review, the court of criminal appeals held that the trial court did not err in denying appellant's request for a jury shuffle, reversed this Court's judgment, and remanded the case to us to consider appellant's two remaining points of error. See Johnson, 977 S.W. 2d at 140. Both appellant and the State were provided an opportunity to re-brief following the remand, but neither chose to do so. We address appellant's remaining points in the context of the briefs on file, and affirm the judgment of the trial court.

In his third point of error, appellant contends the trial court erred in denying his request for a mistrial after the prosecutor, while cross-examining a defense witness, exhibited a police officer's gun in the presence of the jury. The record reflects that while cross-examining the witness about the type of gun he observed at the scene, the prosecutor asked a police officer in the audience for his gun, and after the officer unloaded the weapon, the gun was shown to the witness in the jury's presence.

Appellant argues the gun was not introduced into evidence, and the prosecutor's display of the weapon in the jury's presence was inflammatory and highly prejudicial. The State contends appellant's objection on appeal does not correspond with his objection at trial. Specifically, the State argues appellant's objections at trial were based on the gun not being introduced into evidence and the gun's display before the jury. The State argues that on appeal, appellant's objection is that the prosecutor exhibited a loaded weapon in the presence of the jury. The State further contends appellant failed to preserve the issue for review because he requested a mistrial, which was denied by the trial court, prior to obtaining a ruling on his objection. Finally, the State argues that even if the issue was preserved for review, the trial court did not abuse its discretion by denying appellant's request for a mistrial because there was no evidence that the display of the gun was inflammatory.

To preserve an issue for appellate review, a defendant must make a timely request, objection, or motion, stating the specific grounds for the ruling he desires the trial judge to make. See Tex. R. App. P. 33.1(a)(1); King v. State, 953 S.W.2d 266, 268 (Tex. Crim. App. 1997). The basis for the complaint on appeal must correspond to the objection made at trial. See Fuller v. State, 827 S.W.2d 919, 928 (Tex. Crim. App. 1992). Here, appellant's counsel objected twice to the prosecutor's display of the weapon, each time on the basis that the display was "inflammatory." On appeal, appellant complains that the prosecutor's actions were calculated to "inflam[e] the minds of the jury." We conclude the grounds for appellant's complaint on appeal correspond to the basis of his objections at trial.

In order to preserve error for appeal, a party must obtain an adverse ruling. Id. at 926. This typically is done by objecting, requesting an instruction to disregard, and then moving for mistrial. Id. The court of criminal appeals has noted that there is no requirement that the steps be taken in precise order; rather, "the most important procedure is to press the specific objection to the point of obtaining an adverse ruling, be that to the objection, the request for an instruction, or the motion for mistrial." Id.

In the instant case, appellant's counsel objected to the display of the gun and requested a mistrial, to which the trial court responded, "overruled." A few moments later, counsel again objected and requested a mistrial. The trial court "overrul[ed] the Defense Counsel's objection." We conclude counsel's actions were sufficient to preserve the claim of error.

The record shows that Lorenzo Bell, a defense witness, testified that after gunshots were fired, he observed two persons entering and/or exiting the club with guns. Bell was questioned by appellant's counsel about the type of gun he observed:

[Counsel]: Do you know what kind of gun it was?

[Bell]: It was . . . All I know it wasn't no small gun. I know it was a pretty big sized gun because I could see it.

. . . .

[Counsel]: Are you familiar with guns at all?

[Bell]: Yes, ma'am, a little bit.

[Counsel]: So can you-- could you tell what kind of gun, like was it an automatic or was it a pistol or a rifle or, you know, what kind of gun was it?

[Bell]: It was a pistol or it looked like it could have been an automatic.

On cross-examination, the prosecutor asked one of the police officers in the audience to hand him his gun, and after the officer unloaded it, the prosecutor showed it to the witness. The prosecutor asked Bell whether the gun he saw "look[ed] like this."

Appellant has not cited any authority in support of his argument that the prosecutor's display of the gun was improper and calculated to inflame the minds of the jury. Appellant cites Koller v. State, 518 S.W.2d 373, 378 (Tex. Crim. App. 1975), in support of the proposition that an individual should be convicted only upon evidence of his guilt, and not through attempts to inflame or prejudice the minds of the jurors. See id. However, we find Koller distinguishable. In Koller, the court of criminal appeals reversed a conviction based on a record containing numerous instances of prosecutorial misconduct,⁽²⁾ including improper references to the defendant's failure to testify and improper questions concerning the character of an associate of the defendant. See id. at 377-78. In the present case, the prosecutor simply used the gun as a "prop" while cross-examining the witness about the type of gun he allegedly observed. A witness may be cross-examined on any matter relevant to any issue in the case. Tex. R. Evid. 611(b). We conclude that the display of the gun did not so prejudice the jurors that appellant was denied a fair trial. We also hold the trial court did not err in denying appellant's request for a mistrial based on the display, and overrule appellant's third point of error.

By his fourth point of error, appellant contends the trial court erred in denying his request for a mistrial because the prosecutor engaged in improper jury argument. Specifically, appellant complains the prosecutor invited the jury to convict him for a drug offense committed approximately two years earlier in Wharton County, for which he was never prosecuted. Appellant had testified that at the time of the drug incident, he signed a written statement, confessing to possession of cocaine. He testified that he was not prosecuted for that offense. In closing argument, the prosecutor stated:

[Prosecutor]: . . . I believe firmly and vehemently that what we're here today is [sic] the direct result of the wrong message that were [sic] given in another county and that told Leon Jerome Johnson get after it, partner, you can shoot people randomly and capriciously and with impunity. And, members of this jury, that message, when some of you that are a little older than me were young, was wrong then and it's wrong now. And I'm telling you we've got--

[Defense counsel]: Your Honor, I object to what the State's attorney has just said and he's asked the jury to convict the Defendant based on something from another county, and that's-- I'm asking for a mistrial based on that.

[Court]: Overruled.

[Counsel]: Note my exception for the record, Your Honor, because my client's not on trial for that.

[State]: I am not asking you to convict him for what he did in Wharton County. I'm asking you for the first time ever in Leon Jerome Johnson's life to make him accountable for what the hell he does out there. . .

The State argues that appellant failed to preserve any issue for review because he failed to specifically object, ask for an instruction to disregard, and move for a mistrial. The State further argues that even if the issue was preserved for review, the prosecutor's argument was a legitimate argument from the evidence, and that the trial court did not abuse its discretion in overruling appellant's objection. We conclude appellant did obtain an adverse ruling, and by doing so, thus preserved the issue for review. Fuller, 827 S.W.2d at 926.

To be permissible, jury argument must fall into one of four general categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to the argument of opposing counsel; and (4) plea for law enforcement. Richardson v. State, 879 S.W.2d 874, 881 (Tex. Crim. App. 1993); Davila v. State, 952 S.W.2d 872, 878-79 (Tex. App.--Corpus Christi 1997, pet. ref'd). Counsel may draw all inferences from the facts in evidence that are "reasonable, fair, and legitimate," but he may not use jury argument, either directly or indirectly, to get evidence before the jury that is outside the record. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990); see Contreras v. State, 838 S.W.2d 594, 606 (Tex. App.--Corpus Christi 1992, pet. ref'd) (finding prosecutor's argument a proper plea for law enforcement). Even if argument exceeds the bounds of proper jury argument, it is not reversible error unless, in light of the record as a whole, the argument is extreme, manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. McKay v. State, 707 S.W.2d 23, 26 (Tex. Crim. App. 1985). In deciding if there is reversible error, we view the argument in light of the facts adduced at trial and in the context of the entire argument. McGee v. State, 774 S.W.2d 229, 239 (Tex. Crim. App. 1989).

After reviewing the record, we conclude that the State's argument was within the realm of a proper plea for law enforcement, and thus was not improper. See, e.g., Walthall v. State, 594 S.W.2d 74, 83 (Tex. Crim. App. 1980) (argument in an obscenity trial to the effect that if the defendant was acquitted, nothing would stop him or anyone else from displaying pornography on any street corner); Kirkpatrick v. State, 515 S.W.2d 289, 293 (Tex. Crim. App. 1974) (prosecutor's argument that if jury did not convict defendant, he would engage in "further looting" held to be proper plea for law enforcement); Clark v. State, 952 S.W.2d 882, 889 (Tex. App.--Beaumont 1997, no pet.) (holding prosecutorial remark concerning the harm defendant may do to others in the future as a proper plea for law enforcement); Holt v. State, 899 S.W.2d 22, 25 (Tex. App.-- Tyler 1995, no pet.) (holding prosecutor's summary of defendant's history of offenses, including the consequences of past parole decisions, in a plea for law enforcement was not reversible, provided no overt appeal was made to overcompensate for the possible operation of parole). We hold that the prosecutor's argument was simply a variation of the traditional plea for law enforcement, and was not improper. We further hold the trial court did not err in denying appellant's request for a mistrial based on improper jury argument. We overrule appellant's fourth point of error.

Having considered appellant's remaining two points of error, appellant's judgment of conviction is AFFIRMED.

________________________

LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 26th day of October, 2000.

1. In our original opinion, we also held that the evidence was legally sufficient to support appellant's conviction, and overruled appellant's second point of error. See Johnson v. State, 944 S.W.2d 739, 743 (Tex. App.--Corpus Christi 1997), rev'd per curiam 977 S.W.2d 137, 140 (Tex. Crim. App. 1998).

2. The "numerous" incidents of prosecutorial misconduct included forty-five improper questions, sixteen improper arguments, thirteen instances of misconduct and sidebar remarks, and seven deliberate attempts to circumvent earlier rulings by the trial court. See Koller v. State, 518 S.W.2d 373, 378 (Tex. Crim. App. 1975).