DENNIS RAY CARR,FROM A COUNTY CRIMINAL COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01166-CR
 
DENNIS RAY CARR,FROM A COUNTY CRIMINAL COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE, AND KINKEADE
OPINION BY JUSTICE LAGARDE
AUGUST 21, 1989
        Following a jury trial, Dennis Ray Carr was convicted of the misdemeanor offense of promotion of obscene material. The jury assessed Carr's punishment at one year's confinement in the Dallas County jail and a $2,000 fine. In five points of error, Carr complains that the evidence is insufficient to support his conviction because there is no evidence that he made an "offer to sell" the obscene material, and that the trial court erred in permitting four specific instances of improper jury argument during the guilt-innocence phase. We overrule all five points of error and affirm the trial court's judgment.
Background
        On August 11, 1987, police officer Wesley D. Stout entered the Denmark Adult Book Store in Dallas, Texas. The store had an enclosed manager/clerk's station. Various sexually related devices were displayed in cases underneath the clerk's station. The store contained sexually oriented books and "hard core" video cassettes. The covers of the video cassettes and some of the books portrayed persons engaged in sexual conduct. On one side of the store was an entrance to an arcade. The arcade contained booths where individuals could deposit a token, purchased from the clerk for twenty-five cents, and view a short film clip showing "ultimate sex acts, intercourse, and deviate intercourse."
        The store also contained hundreds of sexually explicit magazines with covers depicting "sexual intercourse, deviate sexual intercourse, and lewd exhibition of the genitals." These magazines were packaged in either clear plastic or cellophane such that both covers were visible inside the packages. The magazine and video cassette racks were ten to twenty feet from the clerk's station. Several of the magazine and video cassette covers were clearly visible from the clerk's station.
        Officer Stout testified that he was inside the store for ten to fifteen minutes and that Carr appeared to be in charge. Officer Stout also testified that he had previously seen Carr working as a clerk in the store. Officer Stout selected a magazine titled "Orgy" which depicted nude males engaged in both oral and anal sodomy. He approached Carr and asked if Carr had any movies depicting some of the acts pictured in the magazine. Carr answered that he thought he did. Stout then purchased the magazine.
Sufficiency of the Evidence
        Both the information and the court's charge required the jury to find that Carr promoted the magazine by both an offer to sell and a sale. The State was therefore required to prove both a sale and an offer to sell. See Ortega v. State, 668 S.W.2d 701, 707 (Tex. Crim. App. 1983); Yates v. State, 766 S.W.2d 286, 288-89 (Tex. App.--Dallas 1989, pet. ref'd). In his first point of error, Carr argues that the evidence is insufficient because it fails to establish that he offered to sell the obscene material to Stout. In reviewing this point, we must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable doubt that Carr offered to sell the obscene material. See Jackson v. Virginia, 443 U.S. 307, 320 (1979); Yates, 766 S.W.2d at 289; Kennedy v. State, 766 S.W.2d 336, 338 (Tex. App.--Dallas 1989, pet. ref'd).
        Carr first contends that under section 43.21(a)(5) of the Penal Code, an offer to sell must be for purposes of resale to constitute an offense. That sections provides:
    (5)        "Promote" means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do same. [emphasis added]
TEX. PENAL CODE ANN. § 43.21(a)(5)(Vernon Supp. 1989). Such section does not in any way suggest that an offer must be for purposes of resale in order to constitute an offense. Carr has apparently confused this section with section 43.21(a)(6) which defines "wholesale promote." Carr, however, was not charged with the felony offense of wholesale promotion of obscenity. See TEX. PENAL CODE ANN. § 43.23(a) & (b)(Vernon Supp. 1989). Instead, he was charged with the misdemeanor offense of promotion of obscenity. See TEX. PENAL CODE ANN. § 43.23(c) & (d)(Vernon Supp. 1989). Consequently, the State was not required to show an offer for purposes of resale.
        Carr next argues that the evidence fails to disclose that he made any affirmative offer at all to officer Stout. Since the term "offer" is not defined by the statute itself, its ordinary meaning and common usage applies. See Howard v. State, 690 S.W.2d 252, 254 (Tex. Crim. App. 1985); Kennedy, 766 S.W.2d at 338. According to Black's Law Dictionary, "offer" means: "To bring to or before; to present for acceptance or rejection; to hold out or proffer; to make a proposal to; to exhibit something that may be taken or received or not. To attempt or endeavor; to make an effort to effect some object, as, to offer to bribe." BLACK'S LAW DICTIONARY 975 (5th ed. 1979).
        Whether Carr offered to sell the obscene material to Stout involves a factual determination based on all the circumstances surrounding the alleged offense. Therefore, the circumstances must exclude every reasonable hypothesis raised by the evidence that would tend to negate this element and thus exculpate Carr. See Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987); Yates, 766 S.W.2d at 289; Kennedy v. State, 766 S.W.2d at 338. Otherwise, no rational trier of fact could have found Carr guilty beyond a reasonable doubt. See Jackson v. State, 672 S.W.2d 801, 803 (Tex. Crim. App. 1984). It is enough, however, if the cumulative force of all the incriminating circumstances warranted an affirmative finding as to this element. See Beardsley, 738 S.W.2d at 685; Kennedy, 766 S.W.2d at 338.
        In this case, Carr was the sole employee in the store when officer Stout entered. Officer Stout testified that all of the store's merchandise was sexually explicit. Carr was standing in the clerk's station in plain view of where the magazines were openly exhibited for sale to the public. The magazine selected by Stout was priced for sale at $10.95. Anyone desiring to purchase the magazine would need to approach Carr to pay for it. When Stout approached Carr, Carr commented on the magazine and accepted Stout's payment. The only reasonable hypothesis raised by the evidence is that Carr was employed by the bookstore and that, as such, Carr endeavored to sell the magazine to Stout. We conclude that a rational trier of fact could have found beyond a reasonable doubt that Carr offered to sell the magazine to Stout. We overrule the first point of error.
        
Improper Jury Argument
        In his second point of error, Carr claims that the trial court erred in permitting the prosecutor to make the following jury argument during the guilt/innocence phase:
    MR. GOLDSTEIN: It's a unique trial. It isn't just one victim sitting in a chair alongside the prosecution. There's not a person who's been injured by a car wreck. So you can't just attack on a personalized basis like in this case. There's not just one person sitting here who has been injured by this. There's no proof of that. But a seat where one doesn't sit in this trial is kind of a symbol. There's a lot of people in that seat. There's a lot of people on the street sitting in that seat that are injured by this stuff.
 
    MR DADE: If Your Honor please, I think that's entirely uncalled for. It's entirely prejudicial and I would respectfully ask the Court to instruct the jury to disregard that statement.
 
    THE COURT: Denied.
On appeal, Carr claims that this argument was not predicated on any evidence in the record. At trial, however, Carr only complained on the ground that this argument was "uncalled for" and "entirely prejudicial." Carr never apprised the trial court of the complaint he now urges on appeal, and the trial court was therefore afforded no opportunity to provide any suitable relief on that basis. Since the complaint urged on appeal varies from that asserted in the trial court, nothing is presented for review. Johnson v. State, 650 S.W.2d 784, 790 (Tex. Crim. App. 1983); see TEX. R. APP. P. 52(a). We overrule the second point of error.
        In his third point of error, Carr contends that the trial court erred in denying his motion for mistrial based on the following argument which immediately followed that about which Carr complained in his second point:
    MR. GOLDSTEIN: There is [sic] a lot of people in that seat. There's [sic] a lot of grandmas in that seat --
 
    MR. DADE: Your Honor, I would object to that. There is no evidence to support that statement --
 
    THE COURT: All right. Let's get the trolly [sic] back on the track now. Sustained.
 
    MR. DADE: If Your Honor please, I would respectfully move for a mistrial based on that statement.
 
    THE COURT: Denied.
Carr argues that such argument was not supported by the record and that the error is compounded by the prosecutor's immediately preceding argument.
        In order to properly preserve a complaint regarding improper jury argument, the defense must object, request an instruction to disregard, and make a motion for mistrial until it receives an adverse ruling. Daniels v. State, 708 S.W.2d 532, 533 (Tex. App.--Dallas 1986, no pet.). In this case, Carr did not request an instruction to disregard. The failure to request an instruction to disregard waives any error unless a proper instruction could not have cured the prejudicial effect of the prosecutor's remarks. See Montoya v. State, 744 S.W.2d 15, 37 (Tex. Crim. App. 1987)(op. on reh'g), cert. denied, 108 S. Ct. 2887 (1988).
        Usually, a trial court's instruction to disregard is sufficient to cure error resulting from a prosecutor's improper jury argument. McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985); Logan v. State, 698 S.W.2d 680, 682 (Tex. Crim. App. 1985). Only when the argument to the jury is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonishment will the court's instruction to disregard be insufficient to cure the error. See McKay, 707 S.W.2d at 37; Logan, 698 S.W.2d at 682. The argument about which Carr complains is not so inflammatory that a proper instruction could not have removed its prejudicial taint. In the absence of a request for an instruction to disregard, therefore, Carr again deprived the trial court of an opportunity to rectify the alleged error and failed to preserve any error resulting from the argument. See Boyd v. State, 643 S.W.2d 700, 707 (Tex. Crim. App. [Panel Op.] 1982). We overrule the third point of error.
        In his fourth point of error, Carr complains about the following argument which immediately followed the argument addressed in Carr's third point of error:
    MR. GOLDSTEIN: If you're going to have any sympathy for this Defendant here, have it for those other people whom you can imagine also have to pick up the tab for this.
    MR. DADE: If Your Honor please, I think that's an improper statement to speculate on and call upon the jury to conjure up some -- on such matter.
 
    THE COURT: Overruled.
Carr claims that this argument invited the jury to go beyond the record and speculate on whether other crimes were committed or whether any individuals were injured by Carr's act in selling the magazine. In context of the preceding argument, we cannot fathom how such argument might have invited the jury to speculate on whether other crimes were committed. We can see, however, how such argument might have invited the jury to speculate as to who was injured by Carr's conduct, and we shall address this point in that light.
        Proper jury argument must fall within one of the following categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) proper plea for law enforcement. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). The State argues that the above argument fell within the fourth category--proper plea for law enforcement. The State asserts that the prosecutor's argument asked the jury to consider the effect that obscene material has generally on people who come in contact with it. We conclude that a proper plea for law enforcement in a case of this nature may include an invitation for the jury to contemplate how members of the public are generally harmed by the promotion of obscene material. We overrule the fourth point of error.
        In his fifth point of error, Carr asserts that the trial court erred in overruling his objection to the following argument:
    MR. MILLER: It's common knowledge and a reasonable deduction this could end up in the hands of children.
 
    MR. DADE: If Your Honor please, I object to that. It's highly speculative and prejudicial.
 
    THE COURT: All right. Don't put the jury in any position in this case.
 
    MR. DADE: If Your Honor please, I'm sorry. Did you overrule or sustain that?
 
    THE COURT: Yes and no. We will not put the jury in any position involved in this case. Proceed.
 
    MR. DADE: If Your Honor please, I object to it because it is unsworn testimony on the part of the prosecutor.
 
    THE COURT: Overruled.
 
    MR. DADE: Well, it calls upon the jury to speculate about matters that are not proper, and for which there is no factual basis.
 
    THE COURT: Overruled.
Carr contends that this argument was neither supported by the evidence nor constituted a reasonable deduction from the evidence and that it invited the jury to speculate on the disposition of the obscene magazine after it left the store. In reply, the State urges that the prosecutor's argument was an answer to defense counsel's argument and a reasonable deduction from the evidence.
        With respect to its first contention, the State asserts that this argument was a proper answer to defense counsel's argument that the magazine was designed for and disseminated to a specially susceptible group, namely male homosexuals. The State contends that in light of such argument, it was proper for the prosecutor to argue that the obscene material could end up in the hands of people other than homosexual adult men. During his cross-examination of officer Stout, defense counsel elicited testimony that adult bookstores separated their product into categories including gay male, gay female, and heterosexual materials. Officer Stout agreed that the particular magazine that he purchased would be classified as gay male material. As such, defense counsel's arguments merely constituted a summary of and reasonable deduction from this evidence.
        On the other hand, the prosecutor's argument as to such material ending up in the hands of children was clearly not supported by any evidence in the record. In answering the arguments of opposing counsel, the prosecutor may go outside the record to respond to defense counsel's argument that was outside the record, but if defense counsel's argument was not outside of the record, the State is not entitled to go beyond the record in response. Girard v. State, 631 S.W.2d 162, 165 (Tex. Crim. App. [Panel Op.] 1982). We conclude that the prosecutor's argument was not a proper answer to the argument of defense counsel.
        With respect to its second argument, the State asserts that the record establishes that the Denmark Adult Book Store was open to the public and that it contained obscene material marked for sale. It urges that it is a reasonable deduction from such evidence that employees of the store had no control over the obscene materials after they were sold. Thus, the State argues, it was a reasonable deduction that no one could tell where the obscene material would end up once it left the store and that it could end up in the hands of children.
        We acknowledge that counsel is given wide latitude in drawing inferences from the evidence so long as they are reasonable, fair, legitimate, and offered in good faith. See Denison v. State, 651 S.W.2d 754, 761-62 (Tex. Crim. App. 1983). Had the State prefaced its argument in the trial court with the chain of inferences it now urges on appeal, such argument would probably have been a reasonable, fair, and legitimate inference from the evidence. In the absence of such prefatory remarks, however, we decline to consider the State's argument that the obscene material could end up in the hands of children as a reasonable, fair, or legitimate inference simply from the evidence that the store was open to the public generally. Accordingly, we conclude that the prosecutor's argument was improper and the trial court erred in overruling Carr's objection.
        Having concluded that the trial court erred in overruling Carr's objection to the improper jury argument, we must reverse the conviction unless we determine beyond a reasonable doubt that such error made no contribution to Carr's conviction or punishment. Montoya, 744 S.W.2d at 38; Garrett v. State, 632 S.W.2d 350, 353-54 (Tex. Crim. App. [Panel Op.] 1982); see TEX. R. APP. P. 81(b)(2). In making this determination, we must examine the totality of the facts and arguments of the parties and judge the probable effect that the argument had upon the minds of the jurors. Montoya, 744 S.W.2d at 38.
        The only evidence introduced during the guilt-innocence phase of trial was the testimony of officer Stout, a sketch of the bookstore's interior, and the magazine itself. In addition to his testimony concerning the actual commission of the offense itself, Stout also graphically described the interior of the bookstore and, in particular, the arcade area. Stout also stated that on numerous occasions, police had arrested persons in the bookstore for public lewdness, usually two males performing sodomy by oral copulation. From this testimony, the jury could rationally have concluded that employees of the bookstore, including Carr, not only continued to violate the obscenity laws but also encouraged or at least tolerated the commission of other crimes on its premises by its patrons.
        Through cross-examination of Stout, the defense attempted to raise an issue as to whether the material was obscene if judged according to the standards of the gay community. The defense never attempted to impeach Stout with respect to the conduct constituting the offense. Thus, the jury had no reason to disbelieve Stout's version of the facts. Moreover, the improper argument was not relevant to any element of the proof required to convict Carr, and the prosecutor did not continue the improper line of argument despite the trial court's overruling of defense counsel's objection. We find beyond a reasonable doubt that the error in allowing the improper argument made no contribution to Carr's conviction.
        During the punishment phase, officer Stout and another police officer testified to Carr's character. Both officers testified that Carr's character was bad based upon his conduct in continuing to violate the obscenity laws. No witnesses testified in Carr's favor. The prosecutor argued that the jury should assess the maximum punishment due to Carr's continuing to commit obscenity offenses. The jury was also free to consider all of the evidence adduced during the guilt-innocence phase of trial. See Montoya, 744 S.W.2d at 38. Based on the totality of the facts and the arguments of the parties, we find beyond a reasonable doubt that the prosecutor's improper argument made no contribution to Carr's punishment. We overrule the fifth point of error.
        We affirm the trial court's judgment.
                                                          __________________________
                                                          SUE LAGARDE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01166.F
        
 
 
File Date[01-02-89]
File Name[881166F]