Mardie Swartz v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-92-086-CR

No. 10-92-087-CR

MARDIE SWARTZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court Nos. 12,731 & 12,732

O P I N I O N

Mardie Swartz entered pleas of guilty to the offenses of escape and burglary of a habitation. The trial court instructed the jury to find her guilty, and the jury assessed punishment at ten years for escape // and seventy-five years for burglary of a habitation. //

Swartz's appointed counsel filed a brief in which he concludes that her appeal is without merit because the record reflects no reversible error. The brief meets the requirements of Anders v. California by advancing two contentions that might arguably support the appeal. //

In point one, Swartz contends that the court erred by admonishing her in the presence of the jury on the consequences of her guilty plea. At the pretrial hearing Swartz pleaded not guilty to both offenses. After the jury was empaneled and sworn, however, Swartz pleaded guilty to each offense. The trial court immediately recessed the jury and admonished Swartz on the consequences of her guilty pleas. // The trial court then called the jury back into the courtroom and, in the presence of the jury, again admonished Swartz before accepting her pleas of guilty to both offenses.

Admonitions in the jury's presence could prejudice the defendant and result in a mistrial or a reversal (such as when it becomes necessary to withdraw the plea of guilty and enter a plea of not guilty). // Swartz, however, never sought to withdraw her pleas of guilty and enter pleas of not guilty. Because no prejudice resulted from the admonition in the jury's presence in this case, we overrule Swartz's first arguable point of error.

In point two, Swartz contends that the State engaged in improper arguments during the punishment phase of the trial. The prosecutor twice referred to Swartz as a "killer" during the opening argument. During closing argument the prosector referred to her prior conviction by saying that she "cold-bloodedly murdered another human being." Finally, the prosecutor asked the jury to "give this community hope" and begged the jury to "strongly consider life or 99 years." Swartz made no objection to the jury argument.

Proper jury argument falls within one of the following categories: (1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to the opponent's argument; or (4) a plea for law enforcement. // All other arguments are improper. The general rule is that the defendant must object to the improper argument to preserve a complaint for appeal. // When the jury argument is so prejudicial that an instruction to disregard the argument could not cure the harm, neither a timely objection nor an adverse ruling is required to preserve the compliant for appellate review. // The jury argument in this case, however, was neither prejudicial nor improper.

The State introduced evidence regarding Swartz's prior conviction for murder with a deadly weapon. The prosecutor's references to Swartz as a "killer" and description of her prior conviction as a "cold-blooded murder" were, therefore, proper as a reasonable deduction from the evidence. //

The prosecutor's argument to "give this community hope" was not designed to induce the jury to assess Swartz a particular punishment because the community desired such. // Rather than asking the jury to lend its ear to the community, the prosecutor was asking the jury to be the voice of the community. // Asking the jury to give the community hope was proper as a plea for law enforcement. // Accordingly, we overrule Swartz's second arguable point of error.

After reviewing the statement of facts and the transcript, the Court is in agreement with Swartz's appointed counsel that the appeal is without merit. The Anders brief contains a certificate of service to Swartz reflecting counsel's compliance with Anders by sending a copy of the brief, the statement of facts, and the transcript to Swartz and advising her of her right to file a pro se brief. As of this date, we have received no brief from Swartz. We have made a full examination of the record and find no error requiring reversal. We, therefore, find the appeal without merit and affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 27, 1993

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