THOMAS LEE BAKER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion Filed April 24, 1997
 
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-95-00715-CR
............................
THOMAS LEE BAKER, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the County Criminal Court No. 10
Dallas County, Texas
Trial Court Cause No. MB93-26987-L
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O P I N I O N
Before Justices Ovard, Hankinson, and Moseley
Opinion By Justice Moseley
        Thomas Lee Baker appeals his conviction for driving while intoxicated (DWI). In two points of error, appellant complains that the prosecutor's closing argument during the punishment phase of the trial, in which he stated that twenty thousand people died annually in alcohol-related accidents, constitutes improper jury argument. Under the facts of this case, we agree. However, we affirm the trial court's judgment because, as set forth below, we find no harm resulted from the improper argument.
FACTUAL AND PROCEDURAL BACKGROUND
        Garland police officer Ronnie Lerma testified that he was on patrol on June 5, 1993 when he observed appellant driving at a high rate of speed. Lerma activated his overhead lights and followed appellant. Although there were several places appellant could have pulled off the road, he continued speeding. Lerma then activated his siren. Appellant continued driving at a high rate of speed. As he approached a stop sign, appellant looked at Lerma in his rear view mirror, waved at him, and ran the stop sign. Finally, appellant pulled into a residential driveway and Lerma pulled in behind him.
        Lerma stated that appellant staggered as he got out of his car. Lerma asked appellant why he had been speeding and why he ran the stop sign. Appellant responded that his son was sick, he was a doctor, and he had just finished working a twenty-hour shift. Appellant's speech was slurred and there was an odor of alcohol on his breath. Believing appellant was intoxicated, Lerma administered field sobriety tests. Appellant did not perform well on any of the tests. Lerma formed the opinion that appellant was intoxicated and arrested him. As Lerma put appellant in the back of his squad car, appellant's son ran out of the house. Lerma asked appellant's son if he had called his dad and if he was sick. Appellant's son told Lerma he was not sick.
        Appellant's son testified that he had called his father between 4:00 and 5:00 p.m. and told him he was a "little sick." He did not tell his father it was an emergency. Appellant did not arrive at the house until 8:30 p.m.
        Appellant did not testify during the guilt/innocence phase of the trial. The jury found appellant guilty of driving while intoxicated.
        At the punishment hearing before the jury, appellant testified on his own behalf. He stated that he is a valet, not a doctor. He denied telling Lerma that he was a doctor; rather, he told Lerma he was tired from studying to be a "doctor of alphabiotics."
        Neither party introduced evidence pertaining to the number of alcohol-related deaths each year. However, during the prosecutor's closing argument during the punishment phase, the following exchange took place:
[Prosecutor]:    As far as the fine, the State is asking that you assess a thousand dollars. We're not asking for the maximum, we're not asking that you give him two thousand, but make it enough so that he knows what he did is not okay, that it is not okay to drive while intoxicated. Send a message to this man and to the other people in this community who drink and drive that we're not going to allow it, it is not acceptable behavior, and if you act this way, you will be punished.
 
        Ladies and gentlemen, 20,000 people a year lose their lives --
 
[Defendant]:    I object, Your Honor, --
 
[Prosecutor]:    -- due to alcohol --
 
[Defendant]:    -- outside the record and no proof of it.
 
The Court:    Overruled.
 
[Prosecutor]:    -- alcohol related accidents. Let this man know and let all the citizens of Dallas County know that we're not going to allow that to go on, that it is not something that we feel is okay.
        The jury assessed a 180-day sentence and a $250 fine. Additionally, the jury recommended that the trial court suspend appellant's sentence and place him on community supervision for twenty-four months and not suspend his driver's license.
        In two points of error, appellant complains the trial court erred (1) in overruling his objection to the prosecutor's improper jury argument and (2) in overruling his motion for new trial complaining about the prosecutor's improper jury argument. Specifically, appellant contends that the prosecutor, by stating that twenty thousand people die every year in alcohol-related accidents, injected new and harmful facts into evidence.
DISCUSSION
        Proper jury argument must fall within one of the following categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response or answer to opposing counsel's argument; and (4) pleas for law enforcement. FN:1 Reference to facts that are neither in evidence nor inferable from the evidence is improper. FN:2 However, the prosecutor may argue matters of common knowledge although these matters might not be supported by express evidence. FN:3
        The State contends the trial court did not err because the prosecutor's argument was a dramatic plea for law enforcement. The State argues that, although the State did not specifically present evidence that people have been killed in alcohol-related accidents, this fact is a matter of common knowledge. The State concedes that the specific number killed may not have been common knowledge, but argues that the focus of the prosecutor's argument was the fact that people are killed in alcohol-related accidents; therefore, the specific number is unimportant. We disagree.
        By arguing a statistic regarding the number of people killed in alcohol-related accidents, the State injected a fact outside of the record. While it is common knowledge that people are killed each year in alcohol-related accidents, the exact statistics are not a matter of common knowledge. Therefore, the prosecutor's argument was improper. FN:4 We conclude the trial court erred in overruling appellant's objection.
        Because we conclude that the trial court erred, we must perform a harm analysis. FN:5 We must reverse unless we determine beyond a reasonable doubt the error did not contribute to the sentence assessed. FN:6 In determining whether improper jury argument is harmless, we must calculate the probable impact of the error on the jury in light of the entire record. FN:7 We review the record in a neutral, impartial, and even-handed manner, not in the light most favorable to the prosecution. FN:8
        Appellant contends the improper argument was harmful because, although he was a first-time offender, he received the amount of jail asked for by the State and a fine "two-and-a-half times the minimum." Appellant points to the fact that one of the jurors knew people killed in alcohol-related accidents and argues this fact makes it likely that the prosecutor's argument contributed to the punishment assessed. He argues that, but for the improper argument, his jail term and fine "could well have been minimums." We disagree.
        In conducting a harm analysis, we consider the following factors, commonly known as the Harris factors: (1) the nature and source of the error; (2) the degree the prosecutor emphasized the erroneous jury argument; (3) the probable collateral implications; (4) how much weight a juror would probably place upon the erroneous jury argument; and (5) whether holding the argument harmless would encourage the State to repeat it with impunity. FN:9 Applying these factors, we conclude beyond a reasonable doubt that the State's improper argument did not contribute to appellant's conviction or punishment in this case.
        First, the source of the error included both the prosecutor and the trial judge. The nature of the error in this case was twofold: (1) the State erred by making an improper jury argument; and (2) the trial court erred by overruling appellant's objection, thus placing its "stamp of judicial approval" on the improper argument. Citing a specific statistic or number in an argument tends to draw dramatic attention to the point made, and increases the credibility of the presenter as an expert on such matters. However, the statement was not, under the circumstances, inherently inflammatory. We conclude that this factor weighs slightly in favor of reversal.
        Second, the State did not emphasize the error or otherwise repeat the erroneous argument; rather, it moved on to its punishment recommendation. This factor weighs against reversal.
        Third, the error's collateral implications on appellant's conviction are none -- the error occurred during the punishment phase. However, appellant argues that, because one of the jurors had family friends killed by drunk drivers, the prosecutor's improper argument contributed to his receiving a greater punishment. This argument also implicates the fourth Harris factor regarding the amount of weight a juror would place on the error.
        At the time appellant committed his offense, a DWI conviction carried a sentence ranging from confinement in jail for seventy-two hours to two years, and a fine of $100 to $2000. FN:10 Thus, appellant was subject to a maximum sentence of two years and a $2000 fine. The prosecutor recommended the jury assess 180 days, probated, a $1000 fine, and suspend appellant's driver's license. The jury assessed a 180-day sentence, recommended that the trial court place appellant on community supervision, but assessed only a $250 fine. Furthermore, the jury recommended that appellant's license not be suspended. Thus, the jury only followed one of the prosecutor's recommendations.
        In light of the nature of appellant's offense, the testimony concerning his disregard of the officer's authority to pull him over, his inconsistent statements to the officer and in court, and the fact that the jury's findings on punishment followed only one of the prosecutor's recommendations, we conclude that the jury did not place any weight on the improper argument when it assessed punishment. Accordingly, the third and fourth factors weigh against reversal.
        The last Harris factor is whether holding the erroneous argument harmless will encourage the State to repeat it with impunity. We do not condone this type of jury argument in future cases. We are concerned with the State's behavior in making such a blatantly improper argument. However, in light of this opinion and because our finding of no harm is tied specifically to the facts of this case, we do not believe the State will be encouraged to make such improper jury arguments in the future. We conclude this factor weighs slightly against reversal.
        After reviewing the record in light of all of the factors set forth in Harris, we conclude beyond a reasonable doubt that the State's improper jury argument did not contribute to appellant's conviction or punishment. Accordingly, we overrule both of appellant's points of error.
        We affirm the trial court's judgment.
        
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
 
FN:1 Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).
FN:2 Borjan, 787 S.W.2d at 56.
FN:3 Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim. App. [Panel Op.] 1981); Vasquez v. State, 830 S.W.2d 829, 830 (Tex. App.--Corpus Christi 1992, pet. ref'd).
FN:4 See Lopez v. State, 500 S.W.2d 844, 846 (Tex. Crim. App. 1973) (prosecutor's argument that eleven police officers were killed same week appellant killed a police officer held improper because not based on evidence in record); Dewitt v. State, 763 S.W.2d 524, 526 (Tex. App.--El Paso 1988, pet. ref'd) (prosecutor's argument that "every twenty minutes someone is killed as a result of an intoxicated drunk" held improper as being outside record).
FN:5 See Tex. R. App. P. 81(b)(2).
FN:6 Id.; Burton v. State, 805 S.W.2d 564, 569 (Tex. App.--Dallas, 1991, pet. ref'd).
FN:7 Coble v. State, 871 S.W.2d 192, 205 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 829 (1994); Orona v. State, 791 S.W.2d 125, 130 (Tex. Crim. App. 1990).
FN:8 Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989).
FN:9 Orona, 791 S.W.2d at 130; Harris, 790 S.W.2d at 587.
FN:10 See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568, 1575, repealed by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704 (now codified at Tex. Penal Code Ann. § 49.09(c) (Vernon Supp. 1997)).
File Date[04-24-97]
File Name[950715F]