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

IN THE

TENTH COURT OF APPEALS

No. 10-93-056-CR

JAMES GREGORY HAIGOOD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 92-655-C

O P I N I O N

Haigood pleaded guilty to forgery. See Tex. Penal Code Ann. 32.21 (Vernon 1989). Punishment, enhanced by one prior felony conviction, was tried to a jury, which assessed a thirteen-year prison term and a $1,000 fine. In five points of error he complains that the prosecutor alluded to an unadjudicated extraneous offense in her opening statement, that the trial court erred by ordering that the sentence run cumulatively with a prior sentence, that the prosecutor improperly commented on and stated an opinion regarding the possibility of Haigood's rehabilitation, and that article 42.08 of the Code of Criminal Procedure, regarding cumulation of sentences, is unconstitutional. We affirm.

Haigood's first point relates to a comment made by the State during its opening statement:

Now, this particular case is a Forgery By Passing case. And Mr. Mosley just read you the Indictment. And what the Defendant has pled guilty to is that he passed a check, knowing that the person who owned this check did not authorize anyone to do this. And in this case, you're going to find out the owner of this check, the person with the checking account, is L. W. Buckner, and you are going to hear from Mr. Buckner. He is the Defendant's step-grandfather, and that around Thanksgiving in 1991, the Defendant came to live with his step-grandfather. He was having some trouble, so he came to live with him and this man took him into his home. And while the Defendant was there, Mr. Buckner noticed that some of his checks turned up missing.

(Emphasis added). Haigood's attorney objected at this juncture, arguing that the State was attempting to introduce extraneous offenses into the trial. The court sustained his objection, instructed the jury to disregard "the last statement of counsel for any purpose," and denied Haigood's motion for a mistrial.

A proper opening statement should inform the jury of "the nature of the accusation and the facts which are expected to be proved by the State in support thereof." Tex. Code Crim. Proc. Ann. art. 36.01(a)(3) (Vernon Supp. 1993). Thus, statements that cannot be proved during the trial constitute an improper opening statement. See Watts v. State, 630 S.W.2d 737, 738 (Tex. App. Houston [1st Dist.] 1982, no pet.). Because the statements made by the state during opening must be tied directly to the evidence, improper statements should be evaluated by the tests applied to the actual evidence. If an opening statement improperly alludes to an extraneous offense, the harm can be cured by an instruction to disregard "unless it appears the [statement] was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind." See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992).

Applying this test to the statement, in light of the entire record, the instruction to disregard cured any possible harm caused by the reference to the missing checks, assuming that the prosecutor's statement was improper. The statement did not directly tie Haigood to the possibility that the checks were stolen. See Paster v. State, 701 S.W.2d 843, 848 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031 (1986). Implying that Haigood stole the check he pleaded guilty to forging does not have the effect of intimating that he was a "criminal in general." After the court sustained Haigood's objection, the prosecutor immediately directed the jury's attention to other evidence she expected to produce. See Manning v. State, No. 10-93-048-CR, slip op. at 8 (Tex. App. Waco October 27, 1993, no pet. h.). There was no further mention of the means by which the forged check came into Haigood's possession, either in the State's opening statement or in the evidence. Finally, the jury did not impose an unduly harsh sentence. We hold that the instruction to disregard the prosecutor's statement was sufficient to remove the prejudicial effect, if any, from the minds of the jury; thus, no error occurred in denying the motion for a mistrial. Point one is overruled.

In his second point, Haigood argues that the court lost the authority to cumulate the sentence in this case with a prior sentence by initially pronouncing sentence without the cumulation order. At the sentencing hearing, the court first determined that Haigood was the defendant in the case and reiterated the punishment assessed by the jury. The court then sentenced Haigood in accordance with the jury's assessment. Immediately after the judge stopped speaking, the State moved to cumulate the sentence with a prior sentence. Haigood objected on the basis that the prior case and this case were transactions that were part of a common scheme and so the sentences should not be cumulated. The court ignored Haigood's objection and ordered the sentences to run consecutively.

Haigood argues that, "if the cumulation order is entered even seconds after sentence is pronounced as in this case, the Trial Court has no authority to do so." This issue has already been decided against Haigood in this appellate district. See Richardson v. State, 832 S.W.2d 168, 172-73 (Tex. App. Waco 1992, pet. ref'd); also State v. Evans, 817 S.W.2d 807, 809 (Tex. App. Waco 1991), aff'd in part and rev'd in part on other grounds, 843 S.W.2d 576 (Tex. Crim. App. 1992). The cumulation order was made at the time the court pronounced sentence. Point two is overruled.

Points three and four complain about a statement made by the prosecutor during closing argument:

[PROSECUTOR]:All you have to do is use your common sense, and this is not difficult. This man is now a three-time convicted felon, and he wants - - the defense wants you to give him a five-year sentence. But he has already had a two-year sentence, he's had a five-year sentence. If that wasn't enough to get his attention, he goes out and commits another crime. We can't rehabilitate him.

[DEFENSE COUNSEL]:I'll object to that, Your Honor. It calls for facts not in evidence and speculation, and calls for jury to speculate.

THE COURT:Overruled.

Haigood argues that the comment by the prosecutor was manifestly improper and injected the prosecutor's personal opinion. He cites to several Texas and federal cases that reverse convictions when the state's argument included references to rehabilitation. See Jones v. State, 522 S.W.2d 225, 226-27 (Tex. Crim. App. 1975); Hernandez v. State, 366 S.W.2d 575, 576 (Tex. Crim. App. 1963); Houston v. Estelle, 569 F.2d 372, 381 n.12 (5th Cir. 1978); Brown v. Estelle, 468 F. Supp. 42, 48-49 (N.D. Texas 1978), aff'd, 591 F.2d 1207 (5th Cir. 1979). These cases concern the suggestion by the state that the jury assess a lengthy sentence to allow the probation laws to determine how long of a sentence the defendant actually served. See id. That is not the issue before us, and Haigood's reliance on these cases is misplaced.

Jury argument by the state should be (1) a summation of the evidence, (2) a reasonable deduction from the evidence, (3) an answer to the argument of opposing counsel, or (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). The State argues that the argument here falls into categories (1), (2), and (4) of Alejandro. Argument that the defendant has not been rehabilitated following prior convictions is permissible as a reasonable deduction from the evidence. See Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985), cert. denied, 498 U.S. 817 (1990); Harrell v. State, 643 S.W.2d 686, 690 (Tex. Crim. App. [Panel Op.] 1982). We hold that this argument by the prosecutor was a proper deduction from the evidence and a plea for law enforcement. As such, it was not improper, and the court did not err by overruling Haigood's objection. Because it is a proper deduction from the evidence, it is not an improper injection of the prosecutor's opinion. See Barnard v. State, 730 S.W.2d 703, 718 (Tex. Crim. App. 1987), cert. denied, 485 U.S. 929 (1988). Haigood's third and fourth points are overruled.

In his fifth point, Haigood argues that article 42.08 of the Code of Criminal Procedure is unconstitutional because it does not contain guidelines for the trial court's exercise of its discretion in determining whether the sentences should be cumulated or run concurrent. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 1993). Haigood acknowledges that the Court of Criminal Appeals has ruled that this statute is not an unconstitutional delegation of authority. See Johnson v. State, 492 S.W.2d 505, 506 (Tex. Crim. App. 1973); Hammond v. State, 465 S.W.2d 748, 752 (Tex. Crim. App. 1971). There has been no change in the statute material to this appeal since Johnson and Hammond were decided. Therefore, we are bound by the Court of Criminal Appeals' holdings, and Haigood's fifth point is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed December 22, 1993

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