JOHN BRUCE JONES. Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed August 28, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01687-CR
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JOHN BRUCE JONES. Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F064-68491-W
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OPINION
Before Chief Justice Thomas and Justices Wright and Maloney   See Footnote 1 
Opinion By Justice Maloney
        A jury convicted John Bruce Jones on his plea of guilty to delivery of cocaine, found both enhancement paragraphs true on his plea of not true, and assessed a twenty-year sentence and a $5000 fine. In one point of error, appellant contends the trial court erred in “allowing the State to argue outside record.” We affirm the trial court's judgment.
BACKGROUND
        Two undercover officers stopped when they saw appellant flagging down vehicles to park in a vacant lot. Negotiations ensued and appellant got in the officers' vehicle to take them to a place where appellant could get cocaine. After the officers paid appellant for the drugs, appellant gave them two rocks of crack cocaine, and on the officers' signal, a stand-by squad car arrested appellant. Appellant pleaded guilty to the delivery of cocaine, but asked the jury to show mercy and give him the minimum sentence.
JURY ARGUMENT
 
 
 
        In a single issue, appellant argues the trial court committed error by allowing the State to argue outside the record. He contends that the State's argument placed before the jury inadmissible extraneous victim testimony. The State responds that it did not argue the personal circumstances of those victims. Specifically, the State contends that the complained-of argument addressed only the effect of appellant's previous offenses on those victims. Additionally, the State maintains that its argument was not outside the evidence and was a reasonable deduction from the evidence and a plea for law enforcement.
1. Standard of Review
 
        Improper jury arguments are nonconstitutional errors addressed under rule of appellate procedure 44.02(b). See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Consequently, we apply the standard for nonconstitutional errors to comments that fall outside the record. See Martinez v. State, 17 S.W.3d 677, 693 (Tex. Crim. App. 2000). We disregard any error that does not affect appellant's substantial rights. Tex. R. App. P. 44.2 (b). In determining any harm from improper jury argument, we balance three factors, (1) the severity of the misconduct, (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct or the likelihood of the jury assessing the same punishment. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
2. Applicable Law
 
        The law presumes “a fair trial, free from improper argument” by the State. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). Permissible jury argument generally falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to opposing counsel's argument; or (4) a plea for law enforcement. Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000).
THE EVIDENCE
1. Kenneth Francis
 
        Francis, a Dallas Police Narcotics Detective, and his partner were working undercover seeking “street vendors” of drug sales in the Second Avenue and Fitzhugh area. Appellant was flagging down vehicles to park for a concert. When the officers drove their vehicle near appellant and lowered the window, appellant said, “What y'all looking for?” The officer replied he was “looking for a twenty . . . hard.” Appellant got into the officers' vehicle and directed the officers to a second location. Appellant left the vehicle and when he returned, he gave the officers two rocks of crack cocaine. In return, they paid appellant with marked money, signaled the “take down team” that the buy was completed, and drove back toward where they first saw appellant. The “take down team” pulled up next to the officers' vehicle and arrested appellant.
 
1. Appellant
 
        Although appellant disagreed with the officer's testimony on the events that lead up to his delivering the cocaine, he did not deny the delivery. Mostly he disputed that the officer had given him a twenty dollar bill because if he had twenty dollars, he would have bought a ten dollar rock and used the extra ten dollars to buy drugs for himself. He testified the officer first approached him and asked where he could score. In return, appellant asked the officer if he was a police officer. The officer replied he had been in the military and been on the unit.   See Footnote 2 
        Appellant testified that he was “an alcoholic, drug addict.” As to his state of health, he had “mental relapse,” Hepatitis C, diabetes, and sclerosis of the liver. He never sought treatment for his hepatitis because he worked as a cook in a restaurant and did not want anyone to know he had hepatitis. He thought people would be scared to be around him. Additionally, he was awaiting a liver transplant.
        He admitted his previous convictions and pleaded guilty because his “life was on the line here and regardless of what background [he had] done, [he had] paid his dues to society” between 1984 and 2003. Appellant recounted the seventeen Christmases and New Years in prison “paying back” and asked the jury for mercy-probation to get counseling and his transplant.
        On cross, he explained his mother raised him and provided him a good home. Because of her, he did not go to the penitentiary until he was thirty-six years old. His first penitentiary sentence was burglary of a habitation when he was under the influence of drugs.
3. Willie Washington
 
        Washington, a Dallas County fingerprint technician, testified that she took appellant's fingerprints to compare them to the attached fingerprints on appellant's previous convictions. Through her comparisons, she identified appellant as the same person who was convicted of five felonies (possession of marijuana, burglary of a habitation, robbery, aggravated sexual assault, and injury to elderly) and one misdemeanor (resisting search). Appellant served sentences in all except the aggravated sexual assault on which he received probation.
 
                                 3. Application of Law to Facts
        In argument, the State initially concentrated on appellant's past convictions and asked the jury to find both paragraphs true and to consider only a ten to twenty year sentence. The State asked the jury to consider appellant's record, his victims, and the police officers that have “worked against” him. The State also asked the jury to consider the testimony of the effect that drugs had on the community and to give appellant the “entire” sentence.
        Appellant's attorney argued that appellant had admitted he sold the drugs. He reminded them of the small amount of drugs sold and that they could find either one or both paragraphs not true and give him State Jail time or the minimum punishment.
        The State responded that this was about appellant and the choices he made. The State referred to appellant's plea for the jury to show mercy and assess the lowest amount of punishment. Then the State made the complained-of argument as follows:
 
He wants your mercy. What mercy did [appellant] show when he was convicted of aggravated sexual assault? What mercy did he show that victim? What mercy did he show -
 
Appellant objected that the State was arguing outside the record and “asking for punishment he is not on trial for [sic].” The trial court overruled the objection. And the State questioned what mercy appellant showed the person whose house he broke into and the person he robbed. Additionally, the State reminded the jury that appellant received ten years for possession of marijuana and that he did not deserve less time for the sale of crack cocaine.
        Appellant maintains that the State placed inadmissible extraneous victim testimony before the jury. We disagree that extraneous victim evidence is inadmissible in punishment. See Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007).   See Footnote 3 
        We must first determine whether the State's remarks were outside the record. Our review of the record reveals no evidence of the underlying facts of the previous offenses or any consequences to the victims. We agree the State's remarks were outside the record and we must decide if this argument affected a “substantial right” of appellant
        The State did not elaborate on whether appellant showed any mercy to the victims of his previous offenses. It was at best a pseudo argument for law enforcement. Although those facts were outside the record, this argument could not have influenced the jury beyond that “influence exerted by a wholly legitimate plea for law enforcement.” Martinez, 17 S.W.3d at 693. We determine this incorrect application of law was relatively mild.
        No curative measures existed. And the State did not emphasize the complained of comments. Rather, the majority of its argument went to appellant's history. The complained-of argument was a small portion of the State's entire argument.
        When appellant testified at trial, he confirmed his six previous convictions. Appellant, although questioning the actual events of the sale, never denied his participation in the charged offense; rather he sought to explain why he acted in the manner he did. He asked the jury for mercy, explaining that he had served his time for his past offenses by spending seventeen Christmases in prison. He needed medical help, he explained he put off treatment for hepatitis, but the jury also heard his reasoning for not getting help-he was a cook and did not want people to be in fear of him. His mother raised him in a happy home. It was not until later in life that he turned to drugs and crime. Although this crime was not particularly egregious, it followed a line of incarcerations for various offenses.
        Given the evidence and mildness of the State's argument, we conclude that any error was harmless and could have made no difference in the jury's assessment of the maximum sentence. We resolve appellant's issue against him.
        We affirm the trial court's judgment.
 
 
 
                                                                                                   FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
 
Footnote 1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Appellant took that to mean Cofield Unit, a penitentiary unit near Palestine, Texas.
Footnote 3 A plea of guilty before the jury does away with the guilt/innocence stage and the trial becomes a unitary proceeding. Washington v. State, 893 S.W.2d 107, 108-09 (Tex. App.-Dallas 1995, no pet.). Consequently, no separate “guilt-innocence” phase of trial exists. See id. Even unadjudicated extraneous offenses and prior bad acts are admissible in punishment. Tex. Code Crim. Proc. Ann. Art. 37.07 § 3(g) (Vernon Supp. 1999). The trial court's admitting evidence at punishment in a noncapital felony offense is grounded in policy, not relevancy. Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000). The factfinder needs complete information to fashion an appropriate sentence. Id. At punishment, the State or the defendant may offer any matter that the trial court deems relevant to sentencing, including the underlying facts of a previous offense. Davis v. State, 968 S.W.2d 368, 373 (Tex. Crim. App. 1998).