Johnson, Michael Joseph v. The State of Texas--Appeal from 182nd District Court of Harris County

Affirmed and Opinion filed September 5, 2002

Affirmedand Opinion filed September 5, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01120-CR

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MICHAEL JOSEPH JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris  County, Texas

Trial Court Cause No. 865,188

O P I N I O N

A jury convicted appellant, Michael Joseph Johnson, of aggravated robbery and assessed punishment at fifty years= confinement. In four points of error, appellant claims (1) the trial court improperly commented on appellant=s right to appeal; (2) the State asked improper hypothetical questions during voir dire; and, during closing arguments, the State (3) improperly argued the community demands and (4) impermissibly argued the range of punishment during guilt-innocence. We affirm.

On December 21, 2000, appellant knocked on Norma Robles=s door and asked to use the telephone. Robles testified that she allowed appellant to come in and use the phone and gave him a glass of water. While appellant was in the apartment, he reached for Robles=s purse and demanded that she give him her car keys. A struggle ensued. Appellant then grabbed a kitchen knife and held it to Robles=s throat. He took a twenty-dollar bill from her purse, threw the purse on the ground, and fled. A broken fingernail later found in complainant=s purse was submitted to the police crime lab for a DNA analysis. Joseph Chu of the Houston Police Department Crime Lab performed the test and testified that the probability that the fingernail was not appellant=s was one in 16 quadrillion. The State also presented fingerprint evidence linking appellant to the crime scene.

In his first point of error, appellant claims that, during voir dire, the trial court improperly commented on his right to appeal. Texas law prohibits a trial court from making a remark calculated to convey to the jury its opinion of the case at any stage of the trial before the verdict is returned. See Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979).

Here, a venire member asked what would happen if it was later determined that the evidence was insufficient to support a conviction, and the trial court commented that a court could reverse a conviction and grant a new trial.[1] Appellant claims the trial court=s comment prejudiced him because it Aessentially communicated to the jury that it would be alright for them to convict an innocent person.@ Appellant=s trial counsel did not object to the trial court=s comment.

A trial court=s statement, amounting to Afundamental error of constitutional dimension,@does not require an objection to preserve error. See Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (recognizing a trial court=s statement to the venire that it preferred the defendant plead guilty tainted the defendant=s presumption of innocence and was fundamental error). However, in this case, the trial court=s comment does not rise to the level of fundamental error. Accordingly, appellant failed to preserve error by not objecting to the trial court=s statement about which he complains. See Tex. R. App. P. 33.1; see also Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983). Additionally, the trial court=s comment is not an expressed opinion on the sufficiency of evidence in appellant=s case; the trial court merely explained a legal process. Consequently, it was not error for the court to have answered as it did. See, e.g., Mestiza v. State, 923 S.W.2d 720, 724 (Tex. App.CCorpus Christi 1996, no writ) (finding that a trial court did not express an opinion of a party=s guilt by briefly explaining parole in response to a venire member=s question).

In his second point of error, appellant claims the State conducted an improper voir dire by attempting to commit the jury to a particular verdict using a hypothetical fact pattern that was factually specific to this case.[2] See Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001) (prohibiting improper commitment questions). An attorney=s questioning during voir dire is proper if it seeks to discover a juror=s views on an issue applicable to the case. See Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985); see also Barajas v. State, No. 415 99, slip op. at 7 11, 2002 WL 1380916, at *3 *5 (Tex. Crim. App. June 26, 2002). In this case, the prosecutor asked Acan you consider scientific evidence when you=re making up your mind as to guilt/innocence?@ The prosecutor then asked Ahave we all heard of fingerprint evidence?@ The prosecutor later asked, Ahave you ever heard of DNA evidence?@ Appellant=s trial counsel objected, arguing the prosecutor was attempting to commit the jury by discussing fingerprint and DNA evidence, claiming the question was a discussion of the facts of the case. The trial court overruled the objection. The prosecutor then asked the prospective jurors individually and by rows if they could consider DNA evidence.

Questions regarding scientific evidence are generally permissible. See Harris v. State, 996 S.W.2d 232, 235B36 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (recognizing the State=s right to ask proper questions of the venire panel about DNA testing since the State=s case was based on DNA and other types of circumstantial evidence). However, such questions would be impermissible if the questions attempt to commit the juror to a particular verdict based on particular facts. Standefer, 59 S.W.3d at 179. Here, the prosecutor=s questions sought to discover jurors= opinions on the reliability of scientific evidence, to which a Ayes@or Ano@answer would not commit the venire member to resolve an issue in a certain way. See id. at 179B80 (prohibiting question whether jurors would presume guilt from defendant=s refusal to submit to breath test). Accordingly, appellant=s second point of error is overruled.[3]

In his final two points of error, appellant claims the State=s closing arguments during the guilt innocence phase of trial were improper. Appellant first claims the following portion of the State=s jury argument was an improper plea for law enforcement:

And your message should be, keep on out there, keep working those cases, bring us a safer community. It shouldn=t be just give up, it should be keep on. Send a message to Ms. Robles and the victims in our community that women should feel safe in their homes. Send a message to people that when they act out of kindness to bring people water and to let them use their telephone that that, too should be rewarded.

However, appellant=s trial counsel did not object to this argument. Therefore, appellant has not preserved this issue for our review. See McFarland v. State, 928 S.W.2d 482, 510 (Tex. Crim. App. 1996) (recognizing that a defendant must object to potential improper argument in order to preserve any error). In any event, the State is entitled to make a plea for law enforcement, including arguing the relationship between the jury=s verdict and the deterrence of crime in general and arguing the impact of the jury=s verdict on the community. See Borjan v. State, 787 S.W.2d 53, 55B56 (Tex. Crim. App.1990). Consequently, the State=s argument was not improper.

Appellant also claims the State improperly argued the range of punishment by stating ADo not turn this dangerous criminal away, make him accountable. Punishment, it=s a different matter. This jury may be lenient, this jury may be . . . .@ Appellant=s trial counsel objected and the trial court sustained the objection. However, appellant=s trial counsel failed to request an instruction that the jury disregard the argument. A defendant=s failure to pursue his objection to an adverse ruling forfeits his right to complain about the erroneous argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (overruling the exception that a defendant can raise improper jury argument for the first time on appeal if the prosecutor=s argument is so prejudicial that an instruction to disregard will not cure the harm). Accordingly, appellant failed to preserve error. See id; see also Campos v. State, 946 S.W.2d 414, 418 (Tex. App.CHouston [14th Dist.] 1997, no pet.).

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Opinion filed September 5, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish CTex. R. App. P. 47.3(b).

[1] The relevant portion of the voir dire examination proceeded as follows:

Venireperson: Well, okay, if that=s the caseBwhat if say all the evidence presented, right, whatever evidence was available was presented that day, for example, it seemed like he was guilty but then I say yes.

The Court: You don=t vote until the whole trial is over.

Venireperson: Until the whole trial is over?

The Court: At the end of the trial you vote.

Venireperson: Say at that point in time, that day with the evidence available you make that decision, then whatever decision, either yes or no, right. But then it turns out, let=s say, actually the defendant was innocent because not sufficient evidence was available at that date and time, but you base your decision on that evidence, that=s going to come back, you know.

The Court: If it comes back a new trial could be granted, the case could be reversed.

[2] In this point of error, appellant references eight pages of record without reference to a specific question or hypothetical. However, in the interest of justice, we review the record and treat the point of error as covering every subsidiary question fairly included. See Tex. R. App. P. 38.1.

[3] Alternatively, appellant requests this court to order a new trial on the matter of punishment only. However, a court cannot order a new trial on punishment unless error occurred in the punishment phase of trial. See Tex. Code Crim. Proc. Ann. art. 44.29(b)(Vernon Supp. 2002). Because appellant alleges no error in the punishment phase of trial, his request is denied.