EMIGDIO NUNEZ-RIVERA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued February 1, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00071-CR
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EMIGDIO NUNEZ-RIVERA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-47338-N
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MEMORANDUM OPINION
Before Justices Moseley, Richter, and Francis
Opinion By Justice Francis
        Emigdio Nunez-Rivera pleaded guilty to unlawful possession of 400 grams or more of methamphetamine and to using or exhibiting a deadly weapon during the commission of the offense. The jury assessed punishment at fifteen years in prison. In three issues, appellant claims the trial court erred in overruling his objection to certain evidence and his objections to improper jury argument. In a fourth issue, he claims the judgment erroneously recites he was convicted under section 481.134 of the health and safety code. We modify the judgment to delete the reference to section 481.134 and replace it with section 481.115(f). As modified, we affirm the trial court's judgment.
        Appellant pleaded guilty to possession of 400 grams or more of methamphetamine. During punishment, Rowlette Police Officer Mark Hardman testified he and the SWAT team executed a search warrant for apartment #203 at 217 Creekview Drive in Rowlette. Appellant, also known as “Chino,” was in the apartment as were two large bags containing over 550 grams of methamphetamine, digital scales, plastic baggies, a cutting agent, a .380 caliber assault pistol, six cell phones, and several Verizon calling cards with the name “Chino” on the back. The apartment also contained two air mattresses, two televisions, and a “handful” of clothes. No other furniture was in the apartment and no food in the refrigerator. Hardman described the apartment as a “stash house,” a place where “large scale drug dealers” store their narcotics. Hardman and his team then executed a search warrant for appellant's house where they found more calling cards, a drug ledger, and over 55 grams of methamphetamine. The calling cards and drug ledger bore appellant's name. According to the ledger, appellant bought approximately one kilo of methamphetamine at a time for resale. Hardman characterized this as a “midlevel operation,” and he said it was unusual for “street level dealers” to buy a kilo of a controlled substance. After hearing this and other evidence, the jury assessed punishment at fifteen years in prison.
        In his first issue, appellant complains the trial court erred in denying his request for a mistrial. Appellant claims the State improperly tried to elicit evidence from Pedro, appellant's younger brother, that appellant's older brother, Junior, sold drugs.
        Initially, we note that although appellant raises his complaint as a failure to grant a mistrial, a review of the record shows appellant objected to this evidence and requested a mistrial. The trial court overruled the objection. Because appellant's first request for relief was overruled, he was not required to request the jury be instructed to disregard the evidence or move for a mistrial. See Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (defendant must object with sufficient specificity to make trial court aware of complaint and must pursue complaint to point of obtaining adverse ruling). Thus, the issue before the Court is whether the trial court erred in overruling his objection.
        To preserve error for appellate review, a timely specific objection must be made and a ruling obtained. See Tex. R. App. P. 33.1(a)(1)(A). To be considered timely, the objection must be made at the first opportunity or as soon as the basis of the objection becomes apparent. See Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). An objection made after the prosecutor has elicited the testimony comes too late. Cruz v. State, 238 S.W.3d 381, 385 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd); see Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008) (appellant's objection to testimony was untimely because it was made after question was asked and answered), cert. denied, 130 S. Ct. 72 (2009). Appellant did not preserve error because he did not object until after the witness answered the complained-of question and the prosecutor asked two additional questions. This issue is waived.
        Furthermore, the testimony occurred during punishment, not during guilt/innocence. The issue at punishment is what sentence should be assessed. Ellison v. State, 201 S.W.3d 714, 718 (Tex. Crim. App. 2006). Article 37.07, section 3(a) provides
 
        Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried . . . .
 
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2009). Relevancy in the punishment phase is “a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.” Ellison, 201 S.W.3d at 718. This includes evidence showing whether the defendant is a suitable candidate for probation. See id. at 720-22; Peters v. State, 31 S.W.3d 704, 717 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd) (concluding nothing in article 37.07, section 3(a) makes evidence of defendant's suitability for probation inadmissible).
        In this case, appellant's fifteen-year-old brother, Pedro, testified appellant was a good brother who took care of him and took him places. During cross-examination, when asked how much he knew about appellant's drug dealing, Pedro responded “I don't know that much.” Likewise, when the prosecutor asked Pedro what he knew about Junior dealing drugs, Pedro responded, “Not that much.” Although appellant claims this evidence was “character assassination,” we disagree. Whether an individual's family will be supportive of his probation is relevant to the issue of punishment. See Peters, 31 S.W.3d at 714 (during punishment when probation requested, courts may allow evidence showing defendant's circumstances, family background and circumstances, religious affiliation, education, employment history as well as evidence of defendant's probation suitability or likelihood of reoffending). We overrule appellant's first issue.
        In his second and third issues, appellant claims the trial court erred in overruling his objections to the State's closing argument. Specifically, appellant contends the prosecutor injected new facts by arguing appellant and a family member were part of the same criminal enterprise which was a national drug distribution organization.
        Proper jury argument encompasses one of the following: (1) an answer to the opposing counsel's argument; (2) a summation of the evidence presented at trial; (3) a reasonable deduction drawn from that evidence; or (4) a plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The State is permitted to draw reasonable inferences from the evidence and should be afforded wide latitude in its jury arguments as long as the argument is supported by the evidence and is made in good faith. Griffin v. State, 554 S.W.2d 688, 690 (Tex. Crim. App. 1977).         The evidence showed appellant's father and Junior live in Mexico, and that Junior frequently travels between Texas and Mexico. Appellant, who was nineteen years old at the time of trial, lived in California with his mother, but moved to Texas and lived with his aunt and her family. Appellant's twenty-one-year-old cousin, Alphonso, had lived in California, moved to Chicago for ten years, and lived in Richardson at the time of trial. According to Alphonso, appellant did not have a job and had dropped out of school. Both appellant and his wife lived with Alphonso who paid all the bills. He was unsure whether appellant had money but admitted appellant occasionally went to eat at McDonald's and drove a Nissan Maxima. Alphonso did not know how appellant got the car but guessed that appellant's father had paid for it. Appellant and his wife moved out but later returned after appellant was arrested. Alphonso did not know if Junior was also involved in dealing drugs. When showed the ledger of drug sales with the entry “mi familia,” Alphonso denied knowing any of the names in the ledger and denied they were family members.
        Pedro was born in California but was living in Garland with his aunt at the time of trial. He and appellant had gone to Mexico to visit their father, and Pedro was still in Mexico when appellant was arrested. He did not know much about appellant or Junior dealing drugs.
        Alphonso's nineteen-year-old brother, Eduardo, was living in Garland at the time of trial but had grown up in Chicago. He lived with appellant and appellant's father in Mexico for a year and then appellant moved to Garland to live with Eduardo and his parents for a year. When asked specifically about appellant's living arrangements during the previous year, Eduardo said he “thought” appellant lived with his family but Eduardo was not sure because he had gone to California for a month, then Mexico for a month. Eduardo worked and went to school so he was not home much and could not be sure how long appellant had lived there. Eduardo and Alphonso have relatives who still live in Chicago.         Sergeant Barry Ragsdale worked for the Dallas Police Department for over nineteen years, including over thirteen years in the Narcotics Division. According to Ragsdale, Dallas is a hub city for drug trafficking. Drugs flow into Dallas from El Paso, Laredo, and Brownsville and go out of Dallas through various routes to the rest of the United States. The majority of methamphetamine found in Dallas is manufactured in and transported from Mexico. A kilogram of Mexican methamphetamine could sell for as much as $42,000 or $45,000. The wholesale value of 551 grams of methamphetamine would range from $9,000 to $12,000, depending on the drug's purity. Ragsdale said a person in possession of that amount of methamphetamine, digital scales, multiple baggies, a semiautomatic assault pistol, a grinder, and cutting agents is a midlevel trafficker. To be a midlevel trafficker takes time, and the individual would have to be a trusted member of the organization.
        During closing, the prosecutor argued appellant did not deserve probation in light of the large quantity of drugs found and the fact that, as Ragsdale testified, he is most likely trafficking from Mexico. When the prosecutor argued Junior was part of the same criminal enterprise, appellant objected “it's outside the evidential record.” The objection was overruled. Although appellant now assigns this ruling as error, there was evidence Junior dealt drugs. Thus, the prosecutor's statement was reasonable inference from the evidence.
        The prosecutor then argued the jury could make a reasonable conclusion “they're bringing the drugs up form Mexico, turning around and taking them to California and Chicago.” Appellant objected “from California to Chicago” was “very much outside the evidential record,” and the objection was overruled. The evidence presented during punishment included testimony that most methamphetamine came from Mexico through the hub city of Dallas, making its way to other cities in the United States, and that appellant has connections in California and Chicago. This argument was likewise a reasonable deduction from the evidence. We cannot conclude the trial court erred in overruling appellant's objections. We overrule his second and third points.
        In his fourth issue, appellant claims we must reform the trial court's judgment because it states appellant was convicted under section 481.134 of the health and safety code when, in fact, he was convicted under section 481.115(f) of the same code. The State concedes this issue.
        We have the authority to modify an incorrect judgment when we have the necessary data and information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); McCoy v. State, 81 S.W.3d 917, 920 (Tex. App.-Dallas 2002, pet. ref'd). Here, the record shows the State filed a motion to strike the allegation that appellant possessed methamphetamine within one thousand feet of an elementary school zone, and the trial court granted that motion. We sustain appellant's final issue. We modify the judgment to delete “481.134 Health and Safety Code” from the section entitled Statute for Offense and replace it with “Section 481.115(f) Health and Safety Code.”
        We affirm the trial court's judgment as modified.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090071F.U05