James T. Smith v. The State of Texas--Appeal from 12th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-98-004-CR

JAMES T. SMITH,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 12th District Court

Madison County, Texas

Trial Court # 9880

O P I N I O N

A jury convicted James Smith of felony assault on a public servant and assessed ten years' imprisonment. Tex. Pen. Code Ann. 22.01 (Vernon 1994 & Supp. 1999). He appeals on four issues regarding improper jury argument. We will affirm the judgment.

Smith is a prison inmate. He was accused of assaulting Gregory Mitchell, a prison guard. Mitchell testified that, because Smith was cursing in the medication line, he told Smith to keep the noise down. Smith cursed at Mitchell and turned away. Mitchell ordered him back to his cell and ordered him to turn over his prison identification. Smith did not turn over his identification and began walking away. Mitchell ordered him to stop but Smith said, [Y]ou better not touch me or I'm going to whip your ass. Mitchell put his hand on Smith s upper arm to stop him a minor use of force. Smith, who was wearing a cast from the elbow down on his left arm, threw his arm up and brought his right arm up in an assaultive posture. Mitchell grabbed Smith's shirt and tried to get him to the ground. As they struggled, Smith hit Mitchell several times with his fist and arm cast. Mitchell suffered a knot behind his ear and a small cut.

Other correctional officers who responded to the fight testified about what they saw. Smith questioned the officers on some discrepancies between their written statements given just after the incident and their testimony at trial.

Fellow inmates testified for the defense. Floyd Martinez testified that Mitchell walked up to Smith and told him to get his punk ass off the pill window. As Smith began walking back to his cell, Mitchell ordered him to get against the wall with his hands behind his back. Mitchell grabbed Smith s left arm and yanked him back. Martinez stated that Smith did not strike Mitchell.

Troy Calib testified that Mitchell became angry because Smith was messing with him. When Smith did not stop after Mitchell ordered him to, Mitchell pushed him against the wall. He was trying to grab Smith s left arm and eventually put Smith into a headlock. Michael Walker testified that Smith did not strike Mitchell.

In closing arguments, defense counsel argued that Mitchell was unfamiliar with proper procedure and had used unlawful force in dealing with Smith; thus, Smith was entitled to defend himself. Counsel argued that even if Mitchell had started the fight, he would not admit it because he would face being disciplined. He stated that the evidence raised a question of whether the other correctional officers were telling the truth or were following the tradition of officers not testifying against a fellow officer. Counsel also argued that, although Smith was an inmate, he should be treated as any other citizen.

The jury was charged on assault on a public servant, assault with bodily injury, and self-defense.

ISSUES

In issue one, Smith complains that the court erred in failing to sustain his objection to the State's prejudicial jury argument. After defense counsel s closing argument, the State argued:

You can take [the charge] back and read it yourself. Now this assault which is a lesser included offense also comes in if there is a belief the jury believes beyond a reasonable doubt that he was not using multiple force at this time but you believe still that this inmate caused bodily injury to him unlawfully, that's a misdemeanor offense and you can find him guilty of a misdemeanor if you feel that's the appropriate message you want to send to the people that work out there, the people of this community, you can find him guilty of assault. But I don't think that's the message that we want to send. We don't want to send the message that the inmates are going to control the prison.

Smith objected that the argument was based on inflaming the community, was not one of the four bases for proper argument, and was not based on the evidence. The court overruled the objection.

Broadly speaking, there are four general areas of permissible jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992). Counsel is allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996).

The State argues that it was responding to comments made by defense counsel asking the jury to view Smith as one of their own. It cites the following portions of defense counsel s closing argument:

[W]ithout paying attention to what the instructions say, you ll get it right by chance maybe, and I know that s not the way you expect to be in a court of law, not the way you d want it for any of your fellow citizens or think it should be for any of your fellow citizens.

. . .

If that was a police officer out in our community and his standard for how he handles citizens and used force against him, I do what I have to do. That s not the law.

. . .

[W]e are entitled not to be convicted of offenses that we didn t do and that s a standard in this country whether it s one of our neighbors or Mr. Smith. And even though we may not see our neighbor when we look at Mr. Smith, we should think of that.

. . .

As [the prosecutor] stands up here and argues, are we going to let inmates behave like that, but the real question is what am I here to decide?

The State may argue the impact of the jury's verdict on the community as a form of a plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990). It may not, however, argue that the community expects or demands a particular punishment. Id. at 56 (citing Cortez v. State, 683 S.W.2d 419, 420 (Tex. Crim. App. 1984)). Argument that is designed to induce the jury to convict the defendant or assess him a particular punishment because "the people" desire such is improper jury argument. Cortez, 683 S.W.2d at 420. Statements such as, [T]he only punishment that you can assess that would be any satisfaction at all to the people of [Nueces] county would be life are improper. Id. at 421.

The following argument, however, was a permissible plea for law enforcement:

The twelve of you were selected to represent the people in Harris County and the State of Texas. Your friends and neighbors. After you leave this trial, your friends and your neighbors are going to ask you what happened . . . . Now, you and as you think about that, think about it right now. Because I think you will want to give them an answer you can be proud of, that your friends and neighbors can be proud of.

Whittington v. State, 580 S.W.2d 845, 847 (Tex. Crim. App. 1979) (cited with approval in Bell v. State, 724 S.W.2d 780, 801-02 (Tex. Crim. App. 1986)). The Court in Whittington found the argument was not an attempt to induce the jury to convict because the people of the community desired or expected a conviction. Id.

The question is whether, in the context of the entire argument, the State asked the jury to convict Smith based on community sentiment rather than the evidence. See Cortez, 683 S.W.2d at 421. The prosecutor characterized the defense position as calling Mitchell a liar. Why don t we just put the prisoners in charge of the prison and lock the guards up? . . . It s a difficult situation that you put these citizens in to try to maintain order and keep that prison safe for not only the inmates, but themselves and you and I that live in these communities where these prisons are located. // The prosecutor argued that Mitchell had a duty to maintain security in the unit and was fulfilling his duty to take care of the situation. He further argued that the evidence proved that Mitchell was lawfully performing his duty at the time of the incident.

The prosecutor urged the jury to find Smith guilty of the felony offense rather than the misdemeanor offense. He further argued that the evidence supported conviction for the greater offense. He did not assert that the community demanded or expected a conviction absent such evidence. See id.

Furthermore, even if the argument were improper, it must be extreme or manifestly improper, or inject new and harmful facts into evidence to constitute harmful error. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997). In determining whether jury argument is extreme or manifestly improper, we look at the entire record of final arguments to determine if there was a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Id. We do not find such an effort in this record.

We overrule issue one.

Smith s third issue asserts that the court erred in failing to sustain his objection to the State s jury argument which attacked defense counsel. During closing argument, defense counsel had stated:

Now, we all know from our human experience that corrections officers, law enforcement officers, they sometimes abuse prisoners. They abuse people in their custody. You ve seen it on TV and the radio it s not a question of whether it could happen in this case. We know it happens. So, it shouldn t be any shock and there are a lot of fine corrections officers. There are a lot of fine attorneys, but there are attorneys who do bad things too; . . . but we all know that.

During the State s closing argument, the prosecutor stated, Ladies and gentlemen, sometimes lawyers mislead juries too. Smith objected to the personal attack on defense counsel. The court overruled the objection stating that the jury can take it anyway they want to. The prosecutor responded that his statement was an invited response to defense counsel s earlier arguments. The prosecutor went on to argue that the defense would have you believe [Mitchell] is a liar. . . Why don t we just put the prisoners in charge of the prison and lock the guards up? The latter statements were made without objection.

The State may not strike at a defendant over the shoulders of his counsel or accuse defense counsel of bad faith and insincerity." Wilson v. State, 938 S.W.2d 57, 60 (Tex. Crim. App. 1996) (quoting Fuentes v. State, 664 S.W.2d 333, 335 (Tex. Crim. App. 1984)). However, what would normally be improper argument may be permissible if the argument was invited by defense counsel. See id.

Defense counsel argued that there are good correctional officers and lawyers and there are bad officers and lawyers. He went on to characterize Mitchell as being unqualified and possibly untruthful. The State responded with the statement that sometimes lawyers mislead juries and continued by arguing that the defensive theory that Mitchell was a liar was incorrect.

In the context of the entire argument, we do not find that the argument was improper. We overrule issue three.

In issues two and four, Smith asserts that the State s arguments complained of in issues one and three denied him due course of law. U.S. Const. V & VII; Tex. Const. art. 1, 10. He argues that the improper jury argument denied him a fair trial. Because we have found that the arguments were not improper, we do not address Smith s second and fourth issues asserting he was denied due course of law.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed August 11, 1999

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