Hall, Ronald O'Neal v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Opinion filed _____________, 2002

Opinion of February 6, 2003 Withdrawn; Affirmed and Corrected Memorandum Opinion filed February 13, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-01246-CR

____________

RONALD O NEAL HALL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

   Harris County, Texas

Trial Court Cause No. 859,235

 

C O R R E C T E D M E M O R A N D U M O P I N I O N

The court withdraws its opinion of February 6, 2003. It issues this corrected opinion to correct the district court s number.

A jury convicted appellant of aggravated robbery, and after he pleaded true to a prior felony conviction, assessed an enhanced sentence of fifty-five years in prison. Appellant challenges a statement in the prosecutor s closing argument, and the legal and factual sufficiency of the evidence. We affirm.

Background

Appellant and Ida Flood occasionally were in a relationship until October 11, 2000, when Flood chose to end it. When she told appellant, he became violent, and Flood called the police. Upon their arrival, appellant agreed to leave her apartment, and Flood chose not to press charges.

Later that night, Flood invited Leonard Dancy (the complainant) to her apartment. Early the next morning, she and Dancy were awakened by the sound of appellant knocking loudly on the front door. By the time Flood came downstairs, appellant and one of his friends had entered the apartment through a broken patio door.

Appellant accused Dancy of sleeping with Flood, and ordered his (appellant s) friend to go retrieve a handgun. When the friend returned with the gun, appellant pointed it at Dancy and searched him, taking Dancy s money and his cell phone. Flood and appellant s friend pleaded with appellant not to kill Dancy. Appellant did not, but did hit Dancy s face and head repeatedly with his gun. When Dancy finally managed to get away, appellant ordered Flood to go with appellant to a friend s home. Frightened, she agreed. Appellant eventually threw Dancy s cell phone over a fence.

The Prosecutor s Jury Argument

Appellant argues the trial court committed reversible error in overruling appellant s objection to a statement by the prosecutor during the guilt/innocence phase:

[THE PROSECUTOR]: Counsel wants you to think about this as some situation where any man would come in and do that kind of thing. Really? Pull a gun and put it to the head of the individual and then take his property? If that s what our society has come to, that s unfortunate. But the fact that he s upset about the breakup of their relationship does not change the fact that a crime has been committed against an individual who is completely and totally undeserving, Leonard Dancy. And it s our responsibility to tell him, Huh-uh. That s not acceptable. You don t get to pull a gun. You don t get to rob the person who had a thing with your former girlfriend. You don t get to do that. No. If you don t, you can ride down on the elevator with him.

[DEFENSE COUNSEL]: I m going to object, Your Honor. That s outside the record.

[THE COURT]: Overruled.

Appellant argues the prosecutor s argument that you can ride down on the elevator with him was improper. But Texas courts have held this exact language to be a permissible plea for law enforcement. See, e.g., Martinez v. State, 715 S.W.2d 725, 727 (Tex. App. Houston [14th Dist.] 1986, pet. ref d) (concluding prosecutor's argument that a not-guilty verdict would permit defendant to "go down that elevator with you" and "cruis[e] ... your neighborhood tonight" was permissible both as a reasonable deduction from the evidence and as a plea for law enforcement); Lopez v. State, 860 S.W.2d 938, 942 43 (Tex. App. San Antonio 1993, no pet.) (finding prosecutor s argument whether defendant would ride the elevator down with you was not improper). Consequently, we overrule appellant s first point of error.[1]

Legal and Factual Sufficiency of the Evidence

In his second and third points of error, appellant argues the evidence was legally and factually insufficient to support his conviction. We apply the usual standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2797 (1979); Johnson v. State, 23 S.W.3d 1, 10 (Tex. Crim. App. 2000).

A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he either (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. 29.02(a); 31.01. Aggravated robbery involves an additional element: use or exhibition of a deadly weapon during the course of the robbery. Tex. Pen. Code Ann. 29.03(a)(2).

The crux of appellant s claim is that the State failed to prove appellant intended to deprive Dancy of his cell phone permanently, because the evidence showed he threw it over a fence. See Tex. Penal Code Ann. 31.01(2)(A). First, Dancy was deprived of his phone whether appellant kept it or threw it away; nothing in the record indicates Dancy ever got it back. Second, appellant never addresses the money he took from Dancy; the only evidence was that appellant intended to deprive Dancy of it permanently. Thus, we find the evidence was sufficient to support appellant s conviction, and overrule his second and third points of error.

The judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed February 6, 2003.

Panel consists of Chief Justice Brister and Justices Hudson and Frost.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Although not cited by appellant, Beltran v. State involved a similar jury argument in which our sister court found improper a prosecutor s remark that a verdict of not guilty would allow the defendant to ride down on the elevator with you to rape other children. 760 S.W.2d 353, 356 (Tex. App. Houston [1st Dist.] 1988, pet ref d). But the argument in Beltran was improper because it suggested that the defendant would commit future crimes if not convicted. Id.; see Livingston v. State, 531 S.W.2d 821, 823 (Tex. Crim. App. 1976) (concluding that the prosecutor's argument was improper when it suggested that if a DWI defendant was permitted to remain at large, he "may very well go out and kill somebody"). Here, the prosecutor made no such suggestion.