Kenneth F. Smith v. The State of Texas--Appeal from 5th District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00062-CR

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KENNETH SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 5th Judicial District Court

Bowie County, Texas

Trial Court No. 04F0052-005

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Kenneth Smith had been in trouble many times, before this charge of possession of less than one gram of cocaine. In fact, Smith had committed twenty prior misdemeanors, felonies, or community supervision violations. After Smith's guilty plea on this charge, and with sentence enhancement using prior convictions that were not contested, the jury issue at trial was where in the range of two years to twenty years his punishment should fall. The jury assessed, and the trial court ordered, eighteen years' imprisonment.

On appeal, Smith argues only that the trial court erred in overruling his objection to the State's improper plea for law enforcement in its closing argument during the punishment phase. We affirm the judgment of the trial court because (1) Smith preserved error only on whether the State's closing argument improperly asked the jury to speculate that Smith might commit crimes of violence in the future, and (2) the State's argument on the preserved issue was not improper.

(1) Smith Preserved Error Only on Whether the State's Closing Argument Improperly Asked the Jury To Speculate That Smith Might Commit Crimes of Violence in the Future

Under a single, general point of error asserting that the State's closing argument during the punishment phase of trial deprived Smith of a fair trial, Smith argues a few different issues. He argues the State improperly sought to put the jury in the position of a victim, to have the jury punish Smith as the community demands or expects, and to have the jury speculate about crimes of violence Smith might commit in the future. Putting aside the multifarious nature of Smith's argument on appeal, we see only one issue on which he preserved any error: jury speculation concerning possible future crimes.

During closing argument on punishment, after the State stated that Smith "smokes crack" and "may not have burglarized your home at this point," it painted a picture of a break-in of an elderly person's home by "someone high on crack." Then the following exchange occurred:

[STATE]: . . . At some point, we've got to take a stand, or what we risk, what we risk is us picking up the paper one day, we'll read through it, and we see a horrible fact scenario where someone's high - -

[DEFENSE COUNSEL]: Your Honor, I'm going to object to speculation, trying to say that Kenneth Smith is going to commit a future crime of violence. That's what he's getting into. That's where he came from two minutes ago.

This was Smith's sole objection during the State's closing argument on punishment.

To the extent Smith seeks to argue other matters on appeal, his objection to the trial court does not comport with those other matters. By presenting his objection to the trial court in this manner, Smith has preserved nothing for review on whether the State improperly attempted to put the jury in the role of victim or improperly argued outside of the record regarding any alleged past actions by Smith. See Tex. R. App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). He preserved error only on whether the State improperly asked the jury to speculate about future crimes Smith might commit.

(2) The State's Argument on the Preserved Point Was Not Improper

The law requires a fair trial, free from improper argument by the State. Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990); Dickinson v. State, 685 S.W.2d 320, 322 (Tex. Crim. App. 1984); Richardson v. State, 158 Tex. Crim. 536, 257 S.W.2d 308 (1953). Improperly allowed argument is reversible error when in light of the record as a whole the argument is extreme or manifestly improper, violates a mandatory statute, or adds harmful facts from outside the record. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996); Borjan, 787 S.W.2d at 56 57; Vineyard v. State, 131 Tex. Crim. 476, 100 S.W.2d 362 (1937). Argument is permissible if it draws from the facts in evidence inferences which are reasonable, fair and legitimate, but impermissible if it places before the jury, either directly or indirectly, evidence which is outside the record. Borjan, 787 S.W.2d at 57; Jordan v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983).

The State may permissibly argue that a defendant may commit the same offense again in the future. See Starvaggi v. State, 593 S.W.2d 323 (Tex. Crim. App. 1979). Such an argument does not ask the jury to punish for unproven crimes, but is a valid plea for law enforcement. See id.; Watson v. State, 760 S.W.2d 756, 760 (Tex. App. Amarillo 1988, pet. ref'd). Here, the State's argument did not suggest Smith had committed crimes other than those proven in this case. The argument merely requested the jury to impose a severe sentence to prevent Smith from perpetrating future crimes, which were not inconsistent with this crime or previous crimes Smith had committed, as set out in the punishment trial record. The argument was a proper plea for law enforcement.

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: January 12, 2006

Date Decided: January 13, 2006

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