Dixon, James Edward v. The State of Texas--Appeal from 209th District Court of Harris County

Affirmed and Memorandum Opinion filed April 3, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00544-CR

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JAMES EDWARD DIXON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 807,855

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

A jury convicted appellant, James Edward Dixon, of delivery of cocaine, weighing less than one gram, and the trial court sentenced him to confinement in a state jail facility for eight months. Appellant appeals his conviction on the grounds that: (1) the trial court erred in denying his motion in limine; and (2) he was denied a fair trial because the prosecutor s comment during closing argument constituted an improper argument, striking over the shoulders of his defense counsel. We affirm.

Motion in Limine

In his first issue, appellant argues that the trial court erred by denying appellant s motion in limine regarding evidence of field tests used during his arrest because they do not meet the standards recognized in the scientific community. However, a ruling on a motion in limine does not preserve error for review. Tex.R.App.P. 33.1; Wilson v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999); Geuder v. State, 76 S.W.3d 133, 136 (Tex. App. Houston [14th Dist.] 2002, pet. filed). Rather, appellant must make a proper objection to the proffered evidence or request a limiting instruction. McDuff v. State, 939 S.W.2d 607, 618 (Tex. Crim. App. 1997); Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988). Because appellant did not request a limiting instruction or make an objection when the testimony concerning field tests was offered at trial, he failed to preserve error, if any. See id. Therefore, appellant s first issue presents nothing for our review and is overruled.

Improper Argument

In his second issue, appellant contends that he was denied a fair trial when the trial court overruled his objection to the prosecutor s alleged improper argument, striking over the shoulders of his defense counsel. The proper areas of jury argument are (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answers to the argument of opposing counsel; and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). However, a remark that strikes at the defendant through his counsel is improper. Coble v. State, 871 S.W.2d 192, 205 (Tex. Crim. App. 1993).

In this case, appellant s counsel made the following statement during closing argument: It s pathetic that officers that are supposed to be that experienced would come in here and tell you they picked up what they considered a drug dealer, let him go without proper identification. That s unbelievable. (emphasis added) Thereafter, the prosecutor commented as follows during her closing statement: I ask you to use your reason and your common sense in this case. Now, the only thing pathetic in this case is the defense attorney said something was pathetic (emphasis added). Appellant s counsel objected to the prosecutor s argument, and the court overruled the objection. The prosecutor did not thereafter characterize anything about the defense as pathetic or use the word pathetic.

On the basis of this record, we cannot say that the trial court erred in overruling appellant s objection or that the prosecutor struck at him over defense counsel s shoulders. See id. Rather, the State s comment was clearly a direct response to appellant s closing argument and thus constituted proper jury argument. See id.; see also Sandoval v. State, 52 S.W.3d 851, 858 (Tex. App. Houston [1st Dist.] 2001, pet. ref d), Corpus v. State, 30 S.W.3d 35, 40 (Tex. App. Houston [14th Dist.] 2000, pet. ref d). Accordingly, we overrule appellant s second issue and affirm the judgment of the trial court.

/s/ Paul C. Murphy

Senior Chief Justice

Judgment rendered and Opinion filed April 3, 2003.

Panel consists of Chief Justice Brister, and Justices Fowler and Murphy.[1]

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

[1] Senior Chief Justice Paul C. Murphy sitting by assignment.