James Teakell v. The State of Texas--Appeal from 54th District Court of McLennan County

AFFIRMED

AUGUST 2, 1990

NO. 10-89-283-CR

Trial Court

# 89-321-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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JAMES TEAKELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 54th Judicial District Court

McLennan County, Texas

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O P I N I O N

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This is an appeal brought by James Teakell who was tried and found guilty by a jury for the felony offense of Possession of a Controlled Substance. Teakell was assessed punishment at four years in the Texas Department of Corrections and a $1000 fine.

Teakell's counsel has filed an Anders brief concluding that the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). However, the brief on behalf of Teakell does set forth one point of error that Teakell's counsel asserts may arguably support a reversal. By this point, an allegation is made that the court erred in overruling Teakell's objection to the State's argument at the punishment phase of the trial when the prosecutor stated that probation was a "get out of jail free card."

The comments which were allegedly improper were as follows:

You know what probation really is? It's a box, a box that's wrapped up in nice pretty paper--probably Christmas paper this time of year--with pretty yellow and pink ribbon.

When you open that box up and look inside it, you are going to find that it's empty because probation is empty. But if you look a bit closer, you will find there is something inside that box. It's a little bitty card. Do you know what that card says? `Get Out of Jail Free.'

Has this man earned a `get-out-of-jail-free' card?

Permissible jury argument is limited to (1) a summation of the evidence, (2) a reasonable deduction from the evidence, (3) a response to argument of opposing counsel, or (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Even if argument falls outside of these four areas, reversible error exists only if the argument is extreme or manifestly improper, or injects new and harmful facts into evidence. Shipley v. State, 729 S.W.2d 349, 350 (Tex. App.--San Antonio 1987, no pet.).

The "get-out-of-jail-free" comments here were properly a plea for law enforcement. Teakell maintains that this argument implied that probation carries no obligations and was a misstatement of the Court's charge. The prosecutor's statement did not make such implications; he stated probation as it is--that a defendant is "out of jail" while serving his term. The jury could see by the charge that there would be terms and conditions that Teakell would have to follow in order to stay out of jail, and the prosecutor's statements did not conflict with the charge's provisions.

Even if we were to assume that this point presents error, the argument was not extreme or manifestly improper, nor did it inject new and harmful facts into evidence. See id. Accordingly, point one is overruled.

The remainder of the Anders brief, listing thirteen possible points of error, presents a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807, 808 (Tex. Crim. App. 1978). A copy of counsel's brief was delivered to Appellant, and he has been advised that he would be given an opportunity to examine the record and file a pro se brief. No such brief has been filed.

We have carefully reviewed the record and counsel's brief and agree that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal. The judgment is affirmed.

TERRY R. MEANS

DO NOT PUBLISHJustice