Kiestan Lovan McBride v. The State of Texas--Appeal from 82nd District Court of Robertson County

AFFIRMED

APRIL 30, 1990

NO. 10-89-091-CR

Trial Court

# 13,672

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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KIESTAN LOVAN McBRIDE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 82nd Judicial District Court

Robertson County, Texas

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O P I N I O N

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This is an appeal by Kiestan Lovan McBride from his conviction in the 82nd Judicial District Court, Robertson County, Texas, of the offense of delivery of a simulated controlled substance. He was sentenced to serve five years in the Texas Department of Corrections and assessed a $3,000 fine, but granted probation.

On July 3, 1988, near Hearne, Texas, a truck carrying five persons flagged down Dan Jones, an undercover narcotics officer with the Hearne Police Department. James Ira Young, Jr., actually delivered the simulated controlled substance to Jones on the highway, but there was testimony that McBride held up or exhibited the substance as Jones was flagged down, motioning to his mouth as though he were smoking a marihuana cigarette.

However, McBride testified that he was asleep in the truck and that he had no advance knowledge of what the other four occupants of the truck, all his cousins, were doing. He was, nevertheless, tried and convicted under the law of parties.

McBride appeals on four points of error, each of which complains of improper oral argument to the jury by the State's attorney. Point one asserts that the prosecutor injected prejudicial and inflammatory unsworn testimony into the record and into the minds of the jurors. The relevant record from the guilt/innocence stage reads as follows:

[PROSECUTOR]: As far as I know, no jury in Robertson County has ever heard a case like this. It's unique. I think unique probably to a lot of this part of the world. Unique maybe because of the type of crime it is, but I think it's something that has to be tried; I think it should be a crime and all of you agreed with me on voir dire, because in many ways it is a crime of double greed like drug dealing, you have people selling drugs for greed, but in this case it's greed coupled with fraud.

[COUNSEL FOR DEFENDANT]: I'm going to object to the last statement made by the D.A. It is elementary that the district attorney may not convey to the jury his opinion or belief and an attempt to do so can only result in prejudice to my client's cause and I ask that the D.A. be instructed to refrain from any further impropriety of this sort.

THE COURT: Overruled.

For a prosecutor's jury argument to be improper, it must go beyond (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to arguments of opposing counsel, and (4) a plea for law enforcement. See Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). The prosecutor's argument clearly related to the seriousness of the crime of delivery of a simulated controlled substance and was a part of the prosecutor's overall plea for law enforcement. As such, it was not improper jury argument. Point one is overruled.

McBride's second point alleges an improper attack upon his defense counsel by the prosecutor during final argument, the objection to which was overruled.Specifically, the prosecutor said:

If you see me making notes on the yellow sheet of paper like I've done, it's because every defense lawyer seems to come to the courtroom and wants to plead with you, "Oh, please don't find my guilty client guilty." You've been sent down a bunch of rabbit trails.

McBride's counsel responded:

I'm going to object to that. State exception to that statement made by the district attorney. His comments are certainly not within the scope of the evidence and have no probative value, and I respectfully request the jury be admonished with respect to those last remarks which aside from being non-evidential, are highly insulting and unfounded.

The court overruled the objection.

McBride's counsel had argued that the arresting officer either lied or was mistaken during his testimony because he was an "interested" witness. The prosecutor's characterization of such argument as sending the jury down "rabbit trails" is not inflammatory or prejudicial. It is proper argument in response to McBride's argument. McBride's second point is overruled.

McBride's third point concerns the following exchange between the State and defense counsel at the punishment phase of the trial:

[PROSECUTOR]: What kind of a message does it send to these people out there, people who are law-abiding citizens? A verdict of probation says that . . .

[COUNSEL FOR DEFENDANT]: I'm going to object to that. I respectfully object to the comments made by the district attorney about what people might say because this type of remark tends to threaten this jury with popular denunciation should they give him something else other than penitentiary time, and I believe it may be inflammatory and might prejudice the jurors against my client.

THE COURT: Overruled.

The argument by the prosecutor, interrupted with an objection by defense counsel, above, was a permissible plea for law enforcement under Alejandro, and not an impermissible plea for jurors to base their verdict on community desires. See Duffey v. State, 567 S.W.2d 197, 207 (Tex. Crim. App. 1978); Carver v. State, 510 S.W.2d 349, 356 (Tex. Crim. App. 1974). McBride's third point is overruled.

McBride's fourth point asserts that the trial court erred in overruling his objection to the following argument by the State during the punishment phase:

I believe from the evidence, that you heard, that [defendant] lied. I think it is clear-cut. I think it is as bold there as he's been awake, black and white. He lied. You can take into consideration what you have seen in this courtroom, evidence you have heard in this courtroom . . . .

McBride's counsel responded to this argument with an objection:

I'm going to object to that because it's tending to prejudice the jury against my client as to whether or not the man lied or not and that's invading their province.

The court overruled the objection.

The State's argument was not improper. Counsel for McBride had contended the officer lied when he testified that McBride had displayed a baggie and made the motion of smoking. McBride had testified that he did not do those things because he was asleep in the car. The State's argument was a reasonable deduction from the facts in evidence. See Griffin v. State, 554 S.W.2d 688, 690 (Tex. Crim. App. 1977). It was proper in answer to arguments of opposing counsel. See Alejandro, 493 S.W.2d at 231. Point four is accordingly overruled.

Furthermore, as to each of the four portions of the State's argument complained of, beyond a reasonable doubt none could have, under the record, contributed to McBride's conviction or the assessment of his punishment. See TEX. R. APP. PROC. 81(b)(2); Garrett v. State, 632 S.W.2d 350, 354 (Tex. Crim. App. 1982).

The judgment of the 82nd Judicial District Court, Robertson County, is affirmed.

TERRY R. MEANS

DO NOT PUBLISHJustice