MARSHALL PENAGRAPH, JR.,FROM A DISTRICT COURT APPELLANT, v. OF THE STATE OF TEXAS, APPELLEE. HUN

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00625-CR
 
MARSHALL PENAGRAPH, JR.,FROM A DISTRICT COURT
 
        APPELLANT,
 
v. OF
 
THE STATE OF TEXAS,
 
        APPELLEE. HUNT COUNTY, TEXAS
 
BEFORE JUSTICES HOWELL, LAGARDE AND WHITTINGTON
OPINION BY JUSTICE LAGARDE
JUNE 20, 1989
        Marshall Penagraph, Jr. appeals from his conviction by a jury for burglary of a building. The jury assessed punishment, enhanced by two prior felony convictions, at forty years' imprisonment. In two points of error, Penagraph asserts that the trial court erred in: (1) overruling his objection and request for mistrial based on the prosecutor's use of the word "enhanced" during voir dire when qualifying the jury on punishment; and (2) not granting a mistrial when the prosecutor left a highlighted copy of the indictment on the jury rail. We disagree with both points of error; consequently, we affirm the trial court's judgment.
        In his first point, Penagraph claims that the trial court erred in overruling his objection and motion for mistrial when the prosecutor used the word "enhanced" when qualifying the jury on punishment. The prosecutor stated during voir dire:
        Let me talk to you a moment about the punishment end of the trial. First of all, the range of punishment for burglary of a building is set forth in our Penal Code. It is set at confinement in the Texas Department of Corrections for not more than 20 years, nor less than 2 years, and a fine not to exceed $10,000.
 
    
        Then under certain circumstances the penalty may be enhanced. If the evidence were to show that a Defendant had twice previously been convicted of a felony, then the punishment could be enhanced up to life in prison or not more than 99 years, nor less than 5 -- excuse me, less than 25. Is there anyone here who could not consider full range of punishment in this case? Is there anyone here that could not?
No timely objection was made. At the conclusion of the State's voir dire, some fourteen pages later in the statement of facts, the following occurred:
        The following was held at the bench, outside the hearing of the jury:
 
        MR. WESTERBECK:        Judge Banner, I would like now to make an objection as to a comment made by Mr. Sumrow during his voir dire. I refuse to stand up and make an objection because I did not want to give more credence or credibility to what was said by him. I'm objecting specifically to him making reference to enhanced punishment or something to that term. He specifically used the word enhanced.
 
        I tend to believe that now the voir dire panel has been prejudiced and now may have reason to believe that he has prior convictions. The proper terminology should have been, under a given set of facts punishment could be as follows, then the range of punishment. The reason why I did not object during that is I knew if I did, it would give more credence to what I was objecting to; therefore, I chose to wait until after voir dire to approach the bench. In front of Mr. Sumrow and the judge, I respectfully request a ruling on my objection.
 
        THE COURT:        What relief did you seek?
 
        MR. WESTERBECK:        Well, Judge, after you make a ruling, I guess --
 
        THE COURT:        No, that's the only part I wasn't clear --
 
        MR. WESTERBECK:        Judge, I guess I would request a mistrial.
 
        THE COURT:        Motion for mistrial is denied. Is there any other relief you want? An instruction might only bring to mind more things.
 
        MR. WESTERBECK:        Judge, based on the fact that I would have requested an instruction but now, based on your motion, I am concerned that if we have an instruction that too will prejudice the voir dire panel. Thank you.
 
        THE COURT:         Thank you.
        Some thirty-four pages further into the record the following is reflected:
        THE COURT:        Mr. Welborn, the question that we need to explore a little bit is your answer as it dealt with the possible ranges of punishment. In the event a jury finds somebody guilty, a jury might be called upon to assess the question of punishment. Most statutes provide some kind of minimum, some kind of maximum, and so forth and so on, but that's what we need to explore.
 
        Mr. Sumrow.
 
        MR. SUMROW:        Yes, sir.
 
        Mr. Welborn, the question was that I believe I propounded to you was consider the entire range of punishment, the minimum being two, the maximum being life, and your response was, no, you could not.
 
        PROSPECTIVE JUROR:        No, I cannot.
 
        MR. SUMROW:        Your Honor --
 
        MR. WESTERBECK:        Judge, could I ask him a question?
 
        THE COURT:        Sure.
 
        MR. WESTERBECK:        Mr. Welborn, based on what Mr. Sumrow said in the voir dire panel when he was talking about enhancement, what does that mean to you?
 
        MR. SUMROW:        Your Honor, I object. That's not a proper question.
 
        THE COURT:         The objection is overruled. I guess the first thing, Mr. Welborn, did you hear anybody use the word enhancement?
 
        PROSPECTIVE JUROR:        Yes, sir.
 
        THE COURT:        Now the question would be, in the context you heard it --
 
        PROSPECTIVE JUROR:         In the context I heard it, it would be a repeat offender kind of thing.
 
        MR. WESTERBECK:        No further questions.
 
        THE COURT:        Thank you, Mr. Welborn. Anything further? Thank you, sir.
        
        MR. SUMROW:        We'd submit him, Your Honor, for challenge.
 
        THE COURT:        Thank you, Mr. Welborn. I appreciate you being here. You don't have to come back if you'd like to go on.
 
        PROSPECTIVE JUROR:        Thank you.
 
        THE COURT:        Thank you very much for reporting.
 
        MR. WESTERBECK:        I would like now to reurge my objection and my motion for mistrial based on the fact that even though this gentleman has been excused, he is part of the panel; therefore, I'm sure that other jurors also now think that he's a repeat offender as Mr. Welborn indicated.
 
        THE COURT:        What is it you want?
 
        MR. WESTERBECK:         I'm requesting a mistrial, Judge.
 
        THE COURT:        Motion for mistrial is denied.
 
        MR. WESTERBECK:        Judge, at the same time I would reurge my motion for instruction that I did not have because I was afraid that I would further prejudice the jury.
 
        THE COURT:        After the jury is -- after the twelve are selected, I will give the jury further instruction.    
Penagraph contends that these excerpts from the statement of facts show that this prospective juror, as well as other jurors, was given the impression that the defendant had been previously convicted of a criminal offense.
        We conclude that by failing to timely object to the prosecutor's comment, error, if any, was waived. See Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim. App. 1987), cert. denied, 108 S. Ct. 2835 (1988); Borgen v. State, 672 S.W.2d 456, 457 (Tex. Crim. App. 1984). However, assuming arguendo that error is preserved, we conclude that when these excerpts are read in context, it is clear the prosecutor was simply qualifying the jury on the range of punishment.
        The Court of Criminal Appeals has held that both the State and the accused have the right to inform the jury of the range of punishment applicable to an enhanced offense and to qualify the jury on the full range of punishment in order to intelligently exercise peremptory challenges. See Martinez v. State, 588 S.W.2d 954, 956-57 (Tex. Crim. App. 1979); see also Felton v. State, 659 S.W.2d 482, 484 (Tex. App.--Dallas 1983, pet. ref'd). We hold that the State was merely qualifying the jury on the range of punishment in order to intelligently exercise its peremptory challenges. Thus, we overrule Penagraph's first point of error.
        In his second point of error, Penagraph claims that the State left a highlighted copy of the indictment on the jury rail during his opening statement to the jury during the guilt or innocence phase. Penagraph argues that this fact somehow indicates that the State informed the jury of the two felonies used for enhancement purposes. However, Penagraph fails to show that any member of the jury saw the enhancement paragraphs. Moreover, the record reveals that: the highlighted portions of the indictment were not the enhancement paragraphs; the indictment was only on the rail, which was approximately eighteen inches from the jury, for a very short period of time; the print in the enhancement paragraphs was very small; and the indictment was turned away from the jury. Assuming, without deciding, that laying the indictment on the jury rail constituted error, we hold, based on the record before us, that any such error was harmless beyond a reasonable doubt and that it made no contribution to the conviction or to the punishment assessed. TEX. R. APP. P. 81(b)(2). We overrule Penagraph's second point of error and affirm the trial court's judgment.
 
 
 
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00625.F
 
 
 
 
File Date[01-02-89]
File Name[880625F]