LAMELL CHARLES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued September 18, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00866-CR
No. 05-05-00867-CR
............................
LAMELL CHARLES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-71116-IV and F05-71117-IV
.............................................................
OPINION
Before Chief Justice Thomas and Justices Wright and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Lamell Charles pleaded not guilty before a jury to two charges of aggravated robbery. The jury found appellant guilty of each aggravated robbery and assessed his punishment at ten years' confinement in the penitentiary in each case.   See Footnote 2  Appellant appeals each conviction. In each case, appellant raises an issue of improper argument to the jury by the prosecutor at the punishment phase of trial. In appellate cause number 05-05-866-CR, appellant raises an additional issue that the jury's verdict was ambiguous because the foreperson signed both the guilty and the not guilty verdict forms. We resolve appellant's issues against him, and affirm each conviction.
        There is no complaint of insufficiency of the evidence. Briefly, the facts are that appellant was using the apartment of co-defendant, Jonathon Downs, for prostitution and drug sales. In December of 2004, he added two aggravated robberies. The robberies occurred two days apart, and involved two complainants who did not know each other.
        On December 18, 2004, Godwin Esene was getting into his car in a shopping center parking lot when appellant got in the back seat of the car, pointed a gun at his head, and threatened to blow his head off if he said anything. Appellant forced Esene to drive to a nearby apartment, where co- defendant Downs and a female prostitute, Ciara, assisted appellant in the robbery. The trio forced Esene, at gunpoint, to take off his clothes and shoes, robbed him of his property, and repeatedly threatened to kill him. The trio finally let him go, telling him if he called the police they would find him and kill him.
        Two days later, on December 20, 2004, the second robbery occurred at the same apartment. Christian Ejiogu was driving home from the gas station when he saw a young woman whom he knew as “Faith,” and to whom he had given a ride in the past. Faith flagged Ejiogu down, and asked Ejiogu to drive her home. When Ejiogu drove toward the apartment where he had taken her once before, she told him she had moved. Faith directed Ejiogu to another apartment. When they arrived, Faith got out. She asked Ejiogu to wait while she went inside to take care of some business. Shortly, another young woman came to Ejiogu's car and told him Faith sent her to tell him to come inside and wait. Ejiogu went inside, was taken upstairs, and was forced to disrobe. Ciara and Downs also assisted appellant in that robbery. At gunpoint, they took Ejiogu's money, wallet, cellular telephone, identification papers, and a leather jacket. They threatened to kill him if he went to the police, and when they finally let him go, they told him he was lucky they did not kill him.         Both complainants testified at trial. Downs also testified for the State against appellant. Downs's name was on the lease for the apartment. He had moved out in early December and let appellant use the apartment. Downs's testimony was basically consistent with the testimony of the complainants. Downs admitted to his participation in the robberies but said he did not profit from them.
        Appellant did not testify at the guilt-innocence phase of trial; however, he did testify at the punishment stage. Appellant denied any involvement in the robberies and also denied being involved in prostitution or drug dealing.
Jury Verdict
 
(Appellate Cause No. 05-05-866-CR)
 
        In appellate cause number 05-05-866, appellant contends he is entitled to a reversal of his conviction because the verdict form is ambiguous. Appellant cites legal authority that a verdict must be certain, consistent, and definite and may not be conditional, qualified, speculative, inconclusive, or ambiguous. See Reese v. State, 773 S.W.2d 314, 317 (Tex. Crim. App. 1989); Eads v. State, 598 S.W.2d 304, 306 (Tex. Crim. App. [Panel Op.] 1980). Appellant relies on the Fifth Amendment to the United States Constitution, Illinois v. Vitale, 447 U.S. 410, 415 (1980), and Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991), in arguing he is entitled to the constitutional guarantee against a second prosecution or conviction after having been acquitted.
        We do not disagree with appellant's legal propositions; however, we do disagree that the facts before us reflect an ambiguous verdict. Although the verdict form, which we attach to this opinion as Appendix A, does reflect that both options were signed, it further reflects the signatures below the verdict of not guilty were stricken through and initialed, thereby negating that finding. Moreover, when the jury returned to the courtroom following its deliberations and completion of the written verdict form, the following occurred:
 
        THE COURT: All right, has the jury reached a verdict in both cases?
 
 
 
        PRESIDING JUROR: Yes, we have.
        THE COURT: Hand it to the sheriff and I'll read the verdicts.
        All right, in F05-71116, “Verdict sheet. We, the jury, find the defendant guilty of aggravated robbery, as charged in the indictment.” Signed Rosalyn Johnson, Presiding Juror.
 
 
 
        F05-71117, “Verdict sheet. We, the jury, find the defendant guilty of aggravated robbery, as charged in the indictment.” Signed Roslyn [sic] Johnson, Presiding Juror.
 
 
 
        Either side wish to poll the jury?
        [PROSECUTOR]: No, Your Honor.
        [DEFENSE COUNSEL]: Yes, Your Honor. You can do a general poll.
 
 
 
        THE COURT: Okay, if y'all - if this is your verdict, guilty on both charges, please raise your right hand. Okay, put your hands down. If this is not your verdict raise your right hand. Okay, let the record reflect all twelve jurors raised their hands that this was their verdict.
 
        When the jury's written verdict form is read in conjunction with the above proceedings had in open court, the jury's verdict in each case is unambiguous. Appellant's contention is without merit. We resolve appellant's issue against him.
Jury Argument
 
(Appellate Cause Numbers 05-05-866-CR and 05-05-867-CR)
 
        In each case, appellant contends he was denied a right to a fair trial because the trial court erred in overruling his objection to prejudicial jury argument by the prosecutor at the punishment phase of his trial. In relevant part, the following occurred:
 
        [PROSECUTOR]: Consider the fact that he is violent. He's all about violence and intimidation. He is running prostitutes, he is selling drugs and he is robbing people. What is nonviolent about that?
        He has put you on notice, quite frankly. There's no other way to put it other than being that blunt. He has put every one of you on notice that he is dangerous. And quite frankly, what's really scary is, if you look at him - do me this courtesy before leaving the courtroom. Look at him. What's absolutely frightening, you can't tell by looking at him. He looks like everybody else. You know, if you were to see a dangerous animal coming down the street you'd immediately recognize -
 
 
 
        [DEFENSE COUNSEL]: Object to this improper jury argument.
 
 
 
        [THE COURT]: Overruled.
        [DEFENSE COUNSEL]: Comparing him to an animal.
        [PROSECUTOR]: That that pit bull or tiger or whatever it might be is dangerous. You would immediately recognize that. But you can't tell by looking at him. And what's frightening is, the next person who may come into contact with him, they won't see it either. They won't know what you know about Lamell Charles. And that's frightening when you think about it.
 
        Appellant quotes from Tompkins v. State, 774 S.W.2d 195, 217 (Tex. Crim. App. 1987) that “[t]here is abundant room for legitimate discussion of the testimony and the law applicable, without indulging in personal abuse of the man who is at the bar of justice.” Appellant contends the above argument was highly prejudicial, served no legitimate purpose and could be used only to unduly prejudice the jury against him. Appellant seeks a new trial on punishment.
        The State responds that appellant forfeited his right to complain on appeal to the prosecutor's argument by failing to lodge a timely objection to the same or similar argument made after his initial objection was overruled and that appellant's general objection of “improper” argument was insufficient to preserve error that the prosecutor was “indulging in personal abuse” by comparing him to a dangerous animal. The “animal comparison” objection was made after the trial court overruled appellant's objection, and thus, was untimely. Moreover, argues the State, appellant never obtained a ruling on that portion of his objection.   See Footnote 3  Alternatively, the State contends the prosecutor's argument was not improper, and even if the argument was improper, it was harmless.   See Footnote 4  See TEX. R. APP. P. 44.2(b).
        The State is entitled to use analogies during jury argument to emphasize and explain evidence by showing a defendant's propensity for violence. In Broussard v. State, 910 S.W.2d 952, 959 (Tex. Crim. App. 1995), the court of criminal appeals reaffirmed its prior holdings in Hughes v. State, 878 S.W.2d 142, 157-58 (Tex. Crim. App. 1992) (op. on reh'g) and Gomez v. State, 704 S.W.2d 770, 771 (Tex. Crim. App. 1985), that “jury argument which constitutes a summation of the evidence is proper.”
        During its argument on punishment, the prosecutor sought to contrast appellant's calm, docile appearance at trial to his violent conduct during the commission of the offenses. He did so by use of an analogy to a dangerous animal to emphasize and explain his point that appellant is not always what he appears to be. The facts were that appellant threatened to kill both complainants with a deadly weapon used during the commission of the offenses. Thus, the evidence supported a conclusion that appellant was dangerous and violent, although he did not appear so at trial. Assuming, without deciding, that appellant has preserved error, we conclude the jury argument was proper as a summation of the evidence. No error is shown. We resolve appellant's second issue against him in each case.
        We affirm the judgment in each case.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
050866F.U05
 
Footnote 1          The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2          The sentences were ordered to run concurrently.
Footnote 3          The State cites, inter alia, rule 33.1(a) of the Texas Rules of Appellate Procedure, Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App. 1992); and Johnson v. State, 713 S.W.2d 741, 745 (Tex. App.-Dallas 1986, pet. ref'd).
Footnote 4          The State distinguishes Tompkins, on which appellant relies, by pointing out that here, the prosecutor argued appellant was unlike a dangerous animal, whereas in Tompkins the prosecutor referred to the defendant as a dangerous animal.