Oliver Jewel Stroman v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Affirmed and Memorandum Opinion filed December 20, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00988-CR

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OLIVER JEWEL STROMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 50,580

M E M O R A N D U M O P I N I O N

A jury convicted appellant, Oliver Jewel Stroman, of felony driving while intoxicated and assessed punishment of five years= confinement and a fine of $5,000. In one issue appellant contends the trial court erred in overruling his objections regarding two of the State=s jury arguments made during the punishment phase of trial. All dispositive issues are clearly settled in law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I. Background

Around midnight on July 4, 2005, Fire Marshall Steven Norton was patrolling in search of persons using illegal fireworks. He pulled behind appellant at a red light. When the light turned green, appellant did not accelerate for a period between thirty to forty-five seconds. Then, as appellant drove, he weaved between the left and right lane markers while proceeding between twenty to thirty miles per hour below the posted speed limit. Additionally, appellant came to a complete stop multiple times in the middle of the road. Fire Marshall Norton, believing appellant was intoxicated, requested police assistance in stopping him.

Pearland Police Officers Jason Myers and Adam Carroll responded to the dispatcher=s call, stopped appellant, and administered three field sobriety tests: the horizontal-gaze- nystagmus, the walk-and-turn, and the one-leg-stand. The officers did not obtain any results from the horizontal-gaze-nystagmus test. However, they believed the walk-and-turn and one- leg-stand tests indicated appellant was too intoxicated to operate his vehicle. Appellant=s field sobriety tests were taped by the video camera attached to Officer Carroll=s police cruiser. The officers arrested appellant and took him to the Pearland jail, where testing registered appellant=s breath-alcohol level at .227 and .238.

At trial, Fire Marshall Norton, Officers Myers and Carroll, and the breath-alcohol- machine technicians testified for the State. The jury also viewed the videotape of appellant=s field sobriety tests. The jury convicted appellant of felony driving while intoxicated.

II. Analysis

In one issue, appellant contends the trial court erred in overruling his objection to the State=s allegedly improper jury arguments. We disagree.

There are four areas of proper jury argument: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) responses to opposing counsel=s argument; and (4) pleas for law enforcement. Perry v. State, 977 S.W.2d 847, 850 (Tex. App.BHouston [14th Dist.] 1998, no pet.). An attorney may not inject speculative evidence outside the record in his jury argument. Everett v. State, 707 S.W.2d 638, 640-41 (Tex. Crim. App. 1986). However, attorneys may draw all reasonable, fair, and legitimate inferences from the facts in evidence. Williams v. State, 688 S.W.2d 486, 491 (Tex. Crim. App. 1985). Additionally, even aggressive arguments are permissible so long as the arguments fall within one of the four areas of proper jury argument. See Berry v. State, 233 S.W.3d 847, 860 (Tex. Crim. App. 2007).

Appellant contends the prosecutor injected speculative evidence outside the record with two statements made during his closing arguments in the punishment phase of trial. In the first statement, the prosecutor argued:

It=s the Fourth of July. You saw how many cars were out there and you know how many kids are out there. You know how many adults are out there. There [are] parties going on everywhere. The kids are out of school. Fireworks are going off everywhere at all times of the day.

We conclude this statement was proper jury argument consisting of reasonable deductions from the evidence and pleas for law enforcement. The prosecutor reminded the jury that, typically during the Fourth of July, an increased number of people are out of their homes at night, and there are generally more distractions on the road than usual. Further, it is common knowledge in American society that, on the Fourth of July, many people have parties, watch and use fireworks, and are generally out of their homes late into the night. Therefore, the prosecutor=s statement was a reasonable deduction from the evidence regarding the usual activities on the Fourth of July and the danger inherent in appellant=s conduct of driving while intoxicated on that day.

In the second statement, the prosecutor argued:

Do you really want to take that risk? No. We don=t have to take this risk. That=s why we have laws against driving while intoxicated. And that=s why we have juries and you guys to tell us and tell the community what you want and what the consequences are going to be if you do what [appellant] did.

So what=s the message going to be? Do you just want to say oh, well, he didn=t hurt anybody this time. You know, he didn=t get into an accident. No harm, no foul. When is he going to learn? Who is to say that the next time he doesn=t seriously injure or kill someone? . . .

You really think that night [appellant] would have been able to stop in time if someone had come across in front of him? A dog had come across in front of him, a child?

We conclude this statement also constituted reasonable deductions from the evidence and a plea for law enforcement. The prosecutor asked the jury to compel compliance with the law. He also placed appellant=s actions in context of outdoor activities on the Fourth of July. Obviously, driving while intoxicated is proscribed because of the potential for serious injury to others, and enforcement is required even when the defendant has not caused actual harm. Accordingly, this argument was not improper.

Appellant=s sole issue is overruled, and the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed December 20, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).