Russell Lee v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-91-207-CR

RUSSELL LEE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-467-C

O P I N I O N

Russell Lee appeals his twenty-year prison sentence and $5000 fine for delivery of cocaine. All of his points relate to the State's jury argument on punishment. We affirm.

The prosecutor made this comment during his closing argument: "Yes, you are dealing with an individual, Russell Lee who sold on this occasion a rock of Cocaine. I think you can infer from the way the purchase was handled or the sale was handled that this no doubt was not the first time, possibly not the last." Lee objected: "That's outside the record. There is absolutely no evidence to indicate that he sold any other Crack Cocaine." The court overruled the objection.

Lee's first point is that the argument was improper because it inferred that he was involved in other transactions where he sold illegal controlled substances. The State contends the prosecutor was drawing a reasonable inference from the facts surrounding the drug delivery.

Shawn Williams, an undercover narcotics officer, describes how he purchased cocaine from Lee:

[PROSECUTOR]:

Q. Will you explain to the jury in street language what the term do you have a twenty means?

A. A twenty is basically twenty dollars worth of crack Cocaine, in a rock like substance.

Q. All right, is this commonly used terminology on the street?

A. Yes, it is.

Q. So this person [i.e., Lee] that approached you, you didn't say do you have any Cocaine you can sell me?

A. No, sir, I didn't.

. . .

Q. And what did the person do in response to your inquiry as to whether he had a twenty or not?

A. That person then removed from a baggie, a rock like substance, and delivered it to me.

Counsel enjoys wide latitude in drawing inferences from the evidence. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). The right is unlimited, in fact, as long as the inferences are reasonable, fair, legitimate, and offered in good faith. Id. Considering Lee's familiarity with the street language commonly used to facilitate drug transactions, we find the prosecutor's inference that this was not Lee's first delivery of cocaine to be reasonable, fair, and legitimate. See id.

Lee also complains of several "do-you-remember" comments Do you remember when you could leave your house unlocked and the keys in your car, and when you could go shopping and not be afraid? He contends the prosecutor improperly suggested that he was involved in burglary, car theft, and general criminal activity. He never objected to the comments, however, which waived any complaint. See Tex. R. App. P. 52(a). But, even if the complaints were preserved, the comments clearly were not referable to Lee but constituted a permissible comment on growing lawlessness and a prelude to a plea for law enforcement. Point one is overruled.

The prosecutor also argued:

We are tired of our children being sold drugs at school. We are tired of drugs being sold on our street. We are tired of all the burglaries and robberies and everything else that arises out of drug dealing done by this man right here [i.e., Lee].

The court sustained an objection that the comments were outside the record and constituted an improper plea for law enforcement, gave the jury an instruction to disregard, but refused to grant a mistrial.

Lee's second point is based on the denial of the mistrial. He contends the prosecutor's comments suggested that, in addition to the delivery of cocaine, he was also guilty of extraneous burglaries and robberies. The comments were so prejudicial, he argues, the instruction to disregard was ineffective to remove the prejudice from the minds of the jurors.

To determine whether the court erred when it refused to grant a mistrial after giving a curative instruction, we will apply the analysis outlined in Washington v. State, 822 S.W.2d 110, 117-119 (Tex. App. Waco 1991, pet. granted). Thus, if the instruction removed the prejudicial effect of the improper argument, then no error resulted from the denial of the motion for a mistrial. See id. at 118.

Counsel can comment on matters of common knowledge. Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim. App. [Panel Op.] 1981). Common knowledge and experience teaches that persons addicted to illegal drugs often resort to burglary, robbery, theft, and other criminal acts to support their habit. Thus, one could plausibly argue that the court was too cautious in instructing the jury to disregard a proper argument based on common knowledge. However, assuming the argument was improper, it was not so extreme or so manifestly improper that its prejudicial effect could not be removed by the instruction. No error occurred, therefore, when the court refused to grant a mistrial. See Washington, 822 S.W.2d at 118. We overrule the second point.

Finally, in his third point Lee complains about these statements:

" "The job you have is to deal with this case, yes, but you also have what the people of the State of Texas think is a much more important job, and that is clearly and unequivocally telling this community, and the people that live in this community in which we all live, exactly what the people of the State of Texas think about dealing in crack Cocaine."

" "The Police have done their job in the middle of the night on dark streets, traveled by Cocaine dealers. They have brought the case to us, and we have presented it to you."

" "[A]nd yes, it is easy to make a strong argument, and yes it's easy to return a verdict, when it is heard on the street by people like him [i.e., Lee] that will make them quiver in their boots, because they know that the honest forthright, upstanding people of this community have had enough."

He waived any complaint when he failed to object to these comments. See Tex. R. App. P. 52(a). Even if preserved, the statements were a permissible plea for law enforcement. See Goocher v. State, 633 S.W.2d 860, 864 (Tex. Crim. App. [Panel Op.] 1982), cert. dism'd for want of substantial federal question, 459 U.S. 807, 103 S. Ct. 32, 74 L. Ed. 2d 46 (1982).

He did, however, object to the following statements:

" "Only you, this jury can tell law enforcement officers on the street, and the citizens of this community, what a 54th District [Court] Jury thinks about crack cocaine dealers."

" "I suggest that the answer [on punishment] is an easy one, if you intend to stand with law enforcement, and help preserve and restore our society to greatness which we all deserve."

His objections, that the prosecutor improperly placed a "community demand" for a harsh punishment upon the jury, were overruled. These statements were also proper pleas for law enforcement. See id. Point three is overruled. Affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 30, 1992

Do not publish